Psychoactive Substances Bill [HL]
Baroness Meacher Excerpts(10 years ago)
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Lord Blencathra
Again, I must disagree with the noble Lord, Lord Patel. Of course, harm reduction is good and of course treatment is essential, but unless we have Customs and Excise and the National Crime Agency and all the others interdicting tonnes and tonnes of drugs, we would need a lot more treatment because we would have a lot more drug addicts in this country. Enforcement has worked. Enforcement is driving down the use of those drugs which were rapidly increasing in the 1980s and the 1990s. There is no suggestion that that trend is wearing off, and there is no suggestion that enforcement is now failing with those drugs. Enforcement is failing in the new psychoactive substances for two reasons. First, the kids find it trendy and sexy to use them because they are not using the same old drugs that dad smoked. Secondly, we do not have legislation tight enough to enable the police and the enforcement authorities to use enforcement properly against those psychoactive substances.
Baroness Meacher (CB)
My Lords, I support this amendment and the comments of the noble Lords, Lord Paddick, Lord Howarth and Lord Patel, but I have to say that I cannot support the noble Lord who has just spoken. This country has some of the strongest and toughest rules and legislation relating to drugs, yet we have one of the highest levels of use of the dangerous drugs that we try to ban. The reality is that we are not succeeding. Countries with relatively liberal, harm-reduction, health-focused policies do a great deal better than we do.
I want to use this opportunity to try to get across to the Minister and to your Lordships why I feel so strongly that we need a review of the Misuse of Drugs Act. I worked in secondary mental health for about a quarter of a century on and off, working with severely psychotic patients. I would say that the majority of those patients take cannabis. Why do they take it? They have told me many times, “Because it makes me feel human”. Thankfully, I have never had a psychotic illness, but if you do and you are given antipsychotic medication, the mix of the illness itself and the medication leaves you feeling, if I may put it this way, subhuman. You do not feel that you have any feelings; you feel dead. If you take cannabis, it makes you feel human. That is the word these patients use—“human”. In my view, that is not unreasonable.
If herbal cannabis is illegal, which it is, these patients along with all sorts of young people all over the country—I am slightly less sympathetic about them, but I am very sympathetic about patients—are driven to take skunk, very high THC cannabis, which is bad for their hallucinations and voices and makes them worse. But they still take the cannabis because it is so important to them to feel human. As I say, that is not unreasonable.
While they were within our services, these people were treated as patients because they had severe health problems. However, it always struck me as peculiar that when they left our hospital, day centre or whatever it was, these very sick people could be picked up by the police and charged with a criminal offence. Why? Because of their health problem. When our Convenor, as she was then, said when I came to this House, “Molly, you must put your name down on the ballot for a debate”, I said, “Oh no”, but I did and I won the ballot. I was told to produce a subject within the hour, and it came to my head that it would have to be about drugs. I feel strongly that our laws are illogical, unjust and cruel, and they are doing an enormous amount of damage to very large numbers of children and young people. That is why I cannot say that I am against the amendment tabled by the noble Lord, Lord Paddick.
Of course I understand that this Bill is about psychoactive substances, and we will come to discuss them, but the fact is that we have only one market, and it is the market for illegal drugs. It is not a market for psychoactive substances over here and a market for controlled substances under the Misuse of Drugs Act over there. They are one market, and therefore it makes no sense to look at this market without looking at that market. That is why I believe firmly that the Government would find it very helpful to look seriously at how the market is working and to draw conclusions from other countries.
We will come to the experience of Ireland and psychoactive substances, where a ban has been in place for four years. What does the deputy chief of the drugs and organised crime branch say about the ban? It has not worked. Therefore, Ireland is thinking of going back to its misuse of drugs Acts. I think that we will be in the same position, so it is really important that we get the Misuse of Drugs Act right as well as the Psychoactive Substances Bill. If we do not, we will just go round and round in very unfortunate circles from one bad policy to another.
I have something else that I want to say. The Labour Party is worried about a delay in this Bill. It does not need to worry, because bans do not work. They have not worked in Ireland. A little bit of delay will not make any difference. We now know from scientists that, of the deaths which have been caused by psychoactive substances, maybe every single one of them—certainly 90% of them—has been as the result of young people taking banned substances, not legal highs. I want to make that point very strongly. A ban does not stop people taking a substance, and some of them will die from doing so. If low-level psychoactive substances were regulated and labelled, with the consequences of taking them clearly specified, the risks and side-effects explained and the maximum dose made clear—in the case of ecstasy, you must take water, but you must not take more than 1 litre, or whatever it is—they would be much safer. My only concern is the safety and well-being of our young people.
Lord Paddick
My Lords, if I may assist the Committee, clearly these amendments can be taken separately and, if the Committee is minded to say that there needs to be a review and no delay in giving effect to the legislation, that is a matter for the Committee. We are talking about the Misuse of Drugs Act in that amendment rather than the Bill, if that helps the noble Lord.
Baroness Meacher
I wonder if it might help the Committee if the noble Lord withdrew Amendment 115 simply so that we can debate the need for a review of the Misuse of Drugs Act without setting it in the context of a delay to the psychoactive substances ban.
Lord Rosser (Lab)
I acknowledge the strength of feeling of many noble Lords on this issue but I hope we can all accept that, whatever our view, we all have the interests and protection of young people in particular in the forefront of our minds when discussing this group of amendments and the Bill as a whole. That is not the prerogative of one particular point of view. The effect of this group of amendments—certainly its intention—is to put back the commencement of most of the Bill’s provisions for, in reality, probably at least 18 months after the Bill has been passed.
The proposals in the Bill for a blanket ban on new psychoactive substances have been supported by the New Psychoactive Substances Review Expert Panel, whose report was called for by one Liberal Democrat Minister and accepted by another. The ban has also been supported by a similar panel in Scotland, the Health and Social Care Committee of the National Assembly for Wales, the Commons Home Affairs Select Committee, the Local Government Association, the police and the two largest political groupings in this House, including the Opposition, at the recent general election. The Liberal Democrats said that they would clamp down on those who produce and sell unregulated chemical highs. That all these organisations, committees and parties reached their conclusion in either the face of all the evidence or the absence of any evidence—as has been implied—is unlikely.
We need to start to tackle the issue of legal highs now. The United Kingdom now has the second largest legal highs market in the world, beaten only by America. We are the top country in Europe for emerging new psychoactive substances. Over the past four years, hundreds of new internet sellers have been established in the UK, along with an estimated hundreds of specialist high street head shops. Beyond this, an unknown number of other stores, including late-night garages and takeaways, have started selling these products. In short, an entire industry became fully established under the previous coalition Government, selling and marketing dangerous drugs largely aimed at young people, many of whom would not otherwise have considered experimenting with drugs.
It also appears quite common in the legal highs market for legal high sellers to send out samples of new psychoactive substances to existing customers and use human beings as guinea pigs with no consideration of the consequences. The evidence also shows how far behind the market we currently are.
Baroness Meacher
I thank the noble Lord for giving way. He says that head shops have no consideration for their customers. In our experience, head shops are the one outlet that do have to have some concern about their customers because, if they kill them or if they finish up in hospital, they will not come back for more and head shops will not make profits, which is what they are there to do. That is the one reason why, unpleasant though head shops are—and they are—if they were properly licensed and controlled, they would be rather better than the alternative: the black market.
Lord Rosser
I think I actually said that it is quite common in the legal highs market for legal high sellers— and there is more than one way of selling it—to send out samples of new psychoactive substances to existing customers and literally use human beings as guinea pigs, with no consideration of the consequences. I do not think that implies that everybody is doing that; it is saying that it is not uncommon for that to be the situation.
The evidence also shows how far behind the market we currently are. Substances were being banned following parliamentary debate earlier this year, when it had been known that sellers were sending out to potential customers samples likely to be toxic three years previously.
I wish to quote the Home Affairs Select Committee report, to which I referred earlier. I realise that some have already challenged this statement but it is set out in the Home Affairs Select Committee report. The report states:
“England and Wales has almost the lowest recorded level of drug use in the adult population since measurement began in 1996. Individuals reporting use of any drug in the last year fell significantly from 11.1% in 1996 to 8.9% in 2011–12. There was also a substantial fall in the use of cannabis from 9.5% in 1996 to 6.9% in 2011–12”.
That does not mean there is not still a problem, but the area where things have been going in the wrong direction, as identified in the report of the expert panel, has been as a result of the emergence of new psychoactive substances. The explosion of new psychoactive substances in the last few years is a unique phenomenon which warrants specific legislation. Some 670,000 young people in the UK were thought to have experimented with new psychoactive substances by 2013, and this is leading to an increase in deaths. To my knowledge, no new psychoactive substance which has been referred to the Advisory Council on the Misuse of Drugs has been found to be safe.
We are not in agreement with this group of amendments, which will delay the introduction of key parts of this Bill, including the blanket ban, when the need for action to address the growing issue of new psychoactive substances, including through education, prevention and treatment, is now.
Lord Mackay of Clashfern (Con)
My Lords, it is wise to remind ourselves of what has been going on in relation to these substances in the past year or two. The system has been that, once a new substance is discovered, the procedures of the Misuse of Drugs Act have been used to add that substance to the prohibitions under that Act. It seems to me that the trouble with that is that it is very late in the day in relation to the emergence of the new substance. The purpose of this Bill, as I understand it, is to eliminate that particular difficulty and to make the provision operate in a general way so that you do not need to move, as in the past, during the emergence of a new psychoactive substance. So, that is what Parliament has been doing for some time. This seems to me to be a much better way to handle the problem than what has been available in the past.
Baroness Meacher
I would like to point out that the Government introduced what I consider to be a very good instrument, the temporary class drug orders. These could be sped up. You can, or should be able to, put an order in place quickly for a 12-month period while an assessment is undertaken. If the drug is not deemed to be safe, it is placed under the Misuse of Drugs Act. There is an instrument in place.
Lord Howarth of Newport
From all his experience, does the noble and learned Lord anticipate that there may be problems in the criminal justice system over definition and establishing that a substance is indeed psychoactive; and that in the case of individuals it is their intention to supply illegally? Also, does he have any anxieties about the practicalities of enforcement? In the interests of the courts and of wider society, it is important that legislation that lays impossible burdens on the police, HMRC and other enforcement authorities is not enacted. They are going to have a large, complex and difficult additional set of tasks under this legislation, at a time of diminishing resources.
Lord Bates
The fact that it is present in the death of a young person is an absolute tragedy. The Government cannot stand idly by and have an interesting debate about general drug policy when that is happening on the streets. The Local Government Association—
Baroness Meacher
The scientists who are advising me say that all the deaths have possibly been a result of banned substances which may be psychoactive or controlled. Four or five may possibly have been due to legal substances that had not yet been banned. A ban is not the way forward on that issue.
Lord Bates
These substances are available. For example, a grandmother told me about the death of her grandchild, although it was not directly related to this. She expressed absolute despair that across the road from a school in Canterbury, 100 yards away from it, was a head shop selling “legal highs”. She believes that they are lethal highs. They are allowed to be traded, on the high street, to children way below any age of consent. There are no restrictions, as there are with alcohol and tobacco. Anyone can go in there with cash and come out with a brightly coloured package which actually says “not fit for human consumption” or “plant food”. Are we supposed to stand idly by when the Local Government Association is telling us that and when the police are telling us that they lack the powers to act? The Republic of Ireland has closed these shops down altogether. We need to get a clear and important message to young people that these drugs are not without risk.
Baroness Hamwee
My Lords, this amendment is also in the name of my noble friend Lord Paddick, and I will speak to our Amendments 50 and 110. Amendment 50 is the substantive amendment and is about the use of cannabis for medical purposes, which was trailed in the previous debate by the noble Baroness, Lady Meacher.
I cannot pretend to be an expert on the scientific and medical details of this issue, but politicians are not expected to be experts. We are generalists, here to represent strands of opinion and concern. As I cannot pretend to be an expert, it may therefore be that I will not understand the response from the Minister, except that I will almost certainly understand what will come as a no, judging by his Answer to the Oral Question asked by the noble Baroness, Lady Meacher, last Wednesday. On that occasion, the Minister said that the steps that she was inquiring about and that I am proposing in this amendment would,
“undermine … efforts to reduce drug harms”.—[Official Report, 17/6/15; col. 1158.]
But our concern is to enable cannabis and cannabis resin to be used for good and to reduce the danger of harm—we have many other amendments aimed at harm reduction. The matter was considered in 1998 by the House’s Select Committee on Science and Technology, which noted that it was rejected by the then Government on the day of publication. There have been other reports since, and very recently a report for the All-Party Parliamentary Group for Drug Policy Reform by Val Curran, professor of pharmacology at University College, London, and Frank Warburton. I am very grateful for such a readable report. It is so readable that I was tempted to read the whole of it out because it is quite short, but I will not. I will spare your Lordships that and attempt to pick out the points that I think are particularly salient.
Professor Curran writes that the problem of,
“a significant number of people”,
who,
“are not authorised to receive medication which they believe will alleviate their condition … are compounded by: An inflexible legal framework … A stranglehold on research into cannabis”,
and, as she puts it:
“A determination when considering medical licensing to equate cannabis, a well known substance in terms of its effects on humans and used medically for around 4000 years … with an entirely new chemical introduced by a pharmaceutical company”.
Therefore, Professor Curran and this amendment propose that these substances should be moved from Schedule 1 to the Misuse of Drugs Regulations 2001, which deals with substances perceived as having no recognised medicinal use, to Schedule 2, which would allow a doctor to prescribe them. They would be in the same class as heroin or diamorphine. I understand that there is no evidence of significant diversion of heroin from medical supplies to the illicit market—to anticipate one possible argument. They would be subject to strict controls via medical regulation, so the diversion to recreational use would be unlikely—to anticipate another possible argument.
Medicinal herbal cannabis is available in the Netherlands, in 23 states of the USA, in Canada and in Israel. Its most-established uses include the relief of pain and muscle spasms or cramps associated with many diseases and conditions, including multiple sclerosis and spinal cord damage, nausea and other responses during treatment for cancer and AIDS; and to deal with nausea and vomiting associated with chemotherapy and radiotherapy used for that treatment. The particular cannabis substances are being exported from the Netherlands to eight other European states, including Germany and Switzerland.
In the exchanges on the Oral Question asked by the noble Baroness, Lady Meacher, last week, the Minister referred to the drug Sativex having been licensed here. Indeed it has been, but it is very expensive and NICE recommends that it is not used to treat spasticity in multiple sclerosis sufferers because it is not cost effective. However, specialist prescribers can and do make individual funding requests, which has led to wide variations across England, and in Wales its use is approved.
It is no wonder that, given no access to legal cannabis-based treatment in a practical sense and no access to herbal cannabis legally, an estimated 30,000 people in the UK find their own sources, with the concomitant risks of severe side-effects, greater potential harm, and no benefit because most street cannabis is skunk with a different make-up from Sativex and from the drug that is manufactured and exported from the Netherlands and elsewhere.
In the Netherlands there has been a genetic alteration to maximise the benign substance, CBD. There is no THC in the drug that is produced there. Professor Curran also reports on a “Stranglehold on research”, as she puts it, and that Schedule 2 status for cannabis and cannabis resin would “greatly facilitate research”. In her report, Professor Curran talks about the “costly obstacle course” and the delay taken by licence applications for use in research. She refers to practical problems such as the need to import cannabis, with import licences being granted for 12 weeks and expiring before all the arrangements for the import licence to be implemented can be made. She said at a meeting that I attended a couple of weeks ago that it is,
“a shame not to allow talent to fly”.
I could have suggested a more caveated amendment—for instance, starting with clinical trials—but I wanted at this stage to get to the heart of the matter. This is about facilitating and stimulating research in the UK into the drug and its constituents, above all by allowing the import of a drug that is widely used—and much less expensive—in the Netherlands, to enable patients to access it without breaking the law and without risking the harms of an unlawful drug without medical supervision or quality control. I beg to move.
Baroness Meacher
My Lords, I shall speak briefly to this amendment because the noble Baroness has said most of what I was going to say. The aim, of course, is to decriminalise the 30,000 patients in this country who currently take cannabis not because they want some sort of high—they do not—but because cannabis, they say, is the best drug for their particular pain, seizures or discomfort. It seems to me that that is important.
The types of illnesses that can be helped have already been stated: multiple sclerosis, Parkinson’s disease, Crohn’s disease, epilepsy, chronic pain, glaucoma, and nausea and loss of appetite caused by chemotherapy. That is a lot of illnesses—disturbing and distressing illnesses—the symptoms of which can be alleviated by cannabis, so it does seem strange that there is such a resistance to reschedule cannabis from Schedule 1 to Schedule 2. Any substance from Schedule 1 has no recognised medicinal use. I just do not understand this, but maybe the Minister can comment on how any Government—it is not this Government; it is every Government—can continue to maintain that cannabis has no recognised medicinal use when Germany and Italy make sure that people with these illnesses can gain access to it. Germany and Italy and many countries across the world know that this is important for their populations. It would be really helpful if the Minister would consider that point.
I also want to draw the attention of the Minister and your Lordships to the extraordinary case of a little seven year-old boy called Jayden. Jayden suffers with Dravet syndrome—an extremely severe form of epilepsy—where he has at least 500 fits a day. He was on 22 pills a day including benzodiazepines. These medications plus the seizures resulting from the illness were giving him hallucinations and terrors. The poor child would scream for literally eight hours at a stretch until he was exhausted and presumably would fall asleep. His mother left home because she could not take it, so he was being looked after by his father.
When the child was four and a half, the father was told that he probably would not live another week. The father asked whether he should try medicinal cannabis. The doctor said that he should try anything, and so he did. The day after the child was given cannabis that the father had found in a chemist’s—this was in the United States; it could not happen here—the child suffered no fits, and then no fits on the following day. Since then he has had a small number, but nothing like before. He is now being painfully weaned off all the drugs that he had been taking, including the benzodiazepines. Anyone who knows anything about those drugs—I do not, actually—will say that it is excruciating to come off them. The poor boy has been put through all this, but he does now smile, walk and play in the water. But, of course, after all those seizures, I imagine that his brain is very damaged.
I have a five-minute clip, and I would ask the Minister to take five minutes of his precious time to look at it. I know that that is a lot of time in a Minister’s day, but even if one child is spared from going through the hell of that illness, I would suggest that that is well worth five minutes. This is a slightly cheeky request to make of a Minister, but it may be an important piece of work that the Minister could do.
Lord Ribeiro (Con)
My Lords, the noble Baroness, Lady Meacher, has demonstrated why anecdote is no substitute for good research. I heard that word used, so it is important to ensure that any use of cannabis for medicinal purposes, for which I have some sympathy, has to be on the basis of clinical research which has been properly carried out and peer reviewed. NICE is a good organisation and I am sure that it would be prepared to take that on board.
In response to a Question put by the noble Baroness, Lady Meacher, last Wednesday, I did make the point that there is evidence from America that troops coming back from Afghanistan suffering from post-traumatic stress disorder resulting in terrible nightmares about their battle experiences have improved using cannabis. However, it is still something which needs to be subject to properly controlled clinical trials.
Something that is often done during a clinical trial is to put the drug out to people on a named-patient basis. Once the clinical trials have been done, one way to institute this is to put in place legislation whereby medication can be given on a named-patient basis. However, I cannot accept it as a blanket way of dealing with these problems.
Baroness Meacher
I should like to make one simple point, which is that I agree absolutely with the noble Lord that what we need are clinical trials on medicinal cannabis. The problem is that researchers do not want to go into this area because the substance is illegal. Getting cannabis in is a tremendous problem because it takes a long time to get the licences. I do not know, but there are problems which the noble Lord may know more about than I. However, if adults and children in particular who are in severe pain and distress could be prescribed medicinal cannabis on a named-patient basis, that would be a good option. But certainly we need to get on with a lot of work on clinical trials.
Lord Rea (Lab)
My Lords, like the noble Lord, Lord Walton, who spoke last week during the supplementaries on the Question for Oral Answer tabled by the noble Baroness, Lady Meacher, on this topic, I served on the Select Committee which looked into the medicinal use of cannabis. One of the central recommendations was exactly what the noble Lord, Lord Ribeiro, has suggested. We need controlled trials. The noble Baroness has just backed up that suggestion as well. But it is very difficult to get these trials going. As she has said, because cannabis is an illegal substance, it is difficult to get people to agree to do the work. One or two trials have been carried out which resulted in the production of Sativex, but only one firm is producing it. As the noble Baroness said, it is terribly expensive and can be prescribed only on a named basis; it is very difficult for doctors to prescribe it to patients who have been shown to benefit from cannabis by getting it illegally.
One of the problems with getting cannabis illegally is that you do not know the ratio of the different cannabinoids in the illegal drug. It has been shown—this was told to us in our committee—that there is a huge range of effects from different cannabinoids. The one that gives the psychoactive effect, tetrahydrocannabinol— THC—is something that people who take cannabis for medicinal purposes do not like. But it is very difficult to find an illegal version of cannabis that contains a good ratio with more cannabidiol—CBD—which is the calming one that reduces spasms. Sometimes people have thought that it does not stimulate psychotic results but prevents them; it is an antipsychotic drug.
So there are real reasons why it should be made legal for researchers to concentrate on doing proper, controlled clinical trials to work out what cannabis can do, and what components or mixtures of cannabis components are most effective. This is crying out to be done, but as things are, it is very difficult to get scientists to agree to do it because of the illegality of the substance.
Lord Bates
I shall come to that a little further on. The point made by the noble Lord about diamorphine, which is prescribed in this country, is perfectly fair. Interestingly, in some other countries it is not prescribed. There will be a difference of view. That is one reason why, from a government and policy point of view, it is important that we have the best possible scientific advice and give due regard to it. The advisory council is specifically charged with that under the Misuse of Drugs Act 1971; that categorisation is its view. Should there be derivatives—I shall answer my noble friend Lord Blencathra’s point on that in a minute—we have the Medicines and Healthcare Products Regulatory Agency, which can offer some advice as well. Beyond that, the National Institute for Health and Clinical Excellence can decide on the deployment.
That is not a case of policymakers passing the buck but of their basing policy on the evidence that comes before them. The Government’s position, based on the advice of the Advisory Council on the Misuse of Drugs, is that cannabis in its raw form is a harmful drug and its use should not be encouraged. The advisory council has reported that there is clear evidence that cannabis has a number of acute and chronic health effects, and that prolonged use can induce dependence. Even occasional use of the drug can pose significant dangers for people with mental health problems.
Baroness Meacher
The Minister refers to cannabis causing severe problems for people with mental health problems. I hope he agrees that Professor Curran is the top expert on cannabis in this country. She has done a lot of research on cannabis with a balance between CBD and THC, and on CBD with little or virtually no THC. She found that that form of cannabis is an anti-psychotic. She believes that it is likely to be able to be used as an alternative to some of the anti-psychotics currently used, which we know have really unpleasant side-effects. There is the prospect of an effective anti-psychotic based on the CBD element in cannabis, but we want that research to be encouraged, supporting the point that we need clinical trials. Professor Curran is very keen for this research to go ahead, particularly in the field of psychiatry. It is she who wants the rescheduling of cannabis from Schedule 1 to Schedule 2 in order to facilitate the research. That is the issue we want to crack today if possible.
Lord Bates
The Institute of Psychiatry, Psychology and Neuroscience has not taken a position. As we found out last week, medical opinions, as with legal opinions, fly effortlessly across the Chamber.
I want to make sure for the record that I have got something absolutely correct, as it is an important issue. I spoke about diamorphine in response to an intervention by the noble Lord, Lord Howarth of Newport. Diamorphine heroin has internationally recognised medical uses in UN drug conventions and has UK marketing authority. I was therefore not too far off the mark in what I said, in the sense that it underscored the point that there is a process which we go through and there are conventions to help us.
Lord Bates
There was a video, which I would be keen to see. Perhaps the noble Baroness could send me the link or I will happily sit down and watch it with her. During the Bill’s passage, we have tried to have meetings with all interested Peers. We have a meeting on health and education on I think 7 July. Notices will be put out to all parties, but that would be a good opportunity for people to come forward. I am thinking particularly of my noble friend Lord Blencathra, who gave us his personal experience of living with multiple sclerosis and its effects. The point about the alternatives might usefully be made at that meeting if he can attend, as I hope he will. As I say, details will be on their way.
The advisory council has reported that there is clear evidence that cannabis has a number of acute and chronic health effects, which prolonged use can bring about. That is why the trials are important and why Sativex went through that process. The position is that it can be prescribed by a doctor, after the Medicines and Healthcare Products Regulatory Agency issued a marketing authorisation.
I do not know whether I have failed the test but the noble Lord, Lord Rosser, and the noble Baroness, Lady Hamwee, set a pretty low hurdle as to whether the Government’s position had changed since last Wednesday. Policy used to change pretty quickly under the previous coalition Government, but now it is a little more set out. Our position is our position but generally, as matter of policy, we have to remain alert and open to the medical evidence being brought forward. The correct channel for that is though the advisory council, which obviously draws on a broad body of research and evidence. I am grateful to the noble Baroness for giving us the opportunity to explore that issue again and, with that additional assurance of a meeting specifically on health matters to give Members of the House an opportunity to talk to those making the decisions, I ask her to consider withdrawing her amendment.
Baroness Meacher
“Republic of Ireland: impact assessment
(1) The Secretary of State must conduct an impact assessment of the Republic of Ireland’s Criminal Justice (Psychoactive Substances) Act 2010.
(2) The Secretary of State must publish a report setting out whether or not the impact assessment under subsection (1) justifies the commencement of this Act in its current form.”
Baroness Meacher
My Lords, I shall also speak to Amendments 109 and 114, which propose that the Bill should be implemented only if an impact assessment of a very similar ban introduced into the Irish Republic in 2011 is undertaken, and a report is issued setting out whether the assessment justifies the commencement of this Bill. The objective against which the Irish Act should be assessed must surely be a reduction in the use of dangerous psychoactive substances and the harms caused by them to the Irish population. I am sure that the Government’s aims in introducing this Bill are along those lines, or something similar, but perhaps the Minister could confirm that point. I hope that will not be a problem.
I certainly believe that the Government’s motives in proposing the Bill are entirely honourable. I have no doubt about that. Ministers want to see a reduction in deaths and injuries to young people resulting from the use of psychoactive substances. I am absolutely on the Government’s side in terms of these aims. I would support the Bill wholeheartedly if the evidence showed that the ban would work as intended. I therefore hope that this proposed new clause will be regarded as entirely uncontroversial, and I propose it as a helpful contribution and not as some wrecking amendment. We are very fortunate to have what must be regarded as a pilot for the Bill right next door in Ireland, where an Act has been in place and operational for four years. They have had four years of experience since their Act became operational. I therefore propose this clause as a helpful contribution.
The BBC has produced firm evidence that the Irish ban is not working. The EMCDDA also has concerns about the situation in Ireland. It talks about the levels of use of legal highs among young people. The average across the EU for 15 to 24 year-olds increased from 5% to 8% from 2011 to 2014, but the figures for Ireland are 16% in 2011 and 22% in 2014—the highest rate in Europe, despite the blanket ban introduced in 2011. I understand that there is a degree of uncertainty about the precision of those figures, but it would be sensible to be absolutely clear what has happened to use of and damage from these psychoactive substances in Ireland before we move ahead.
The other point is what has happened to the levels or numbers of deaths and serious injuries in Ireland following the introduction of that Act. Whatever the figures, we need to take very seriously the comments of the deputy head of the Drugs and Organised Crime Bureau in Ireland who, as I understand it, has said that the ban has failed and that they have not been able to operationalise it because of definitional problems. They have not got off the starting blocks, let alone explored whether the ban might work in other respects. As I mentioned at Second Reading, the experience in Poland of a blanket ban on psychoactive substances has coincided with an increase, rather than a decrease, in the harm to young people. A concern in Ireland, identified by the BBC, has been about whether they can determine if a particular substance is psychoactive or not. The noble Baroness, Lady Bakewell, mentioned this earlier. As a result of that problem, it seems that Ireland is considering moving back to its Misuse of Drugs Act. I find that profoundly distressing because of my absolute lack of respect for our Misuse of Drugs Act, particularly in relation to consumption by children and young people and their criminalisation.
The Bill also seems to have definitional problems which could undermine it catastrophically. For example, Clause 2(1) defines a psychoactive substance as one that is “not an exempted substance”. For the latter, we turn to Clause 3 and Schedule 1. We see that alcohol, nicotine products and caffeine are exempted, but only if they do not contain a psychoactive substance. However, these are psychoactive substances; how can they not contain a psychoactive substance? Maybe the Bill intends to say that substances such as alcohol should not have any other psychoactive substance within them. If so, the Bill needs to make that clear. How on earth can we justify exempting a substance such as alcohol, which is profoundly psychoactive and dangerous, just because it might have some relatively marginal other psychoactive substance within it?
This confusion perhaps illustrates the utter nonsense—a word which I use very carefully, having thought about it for a long time first—which runs through our drug laws generally, of exempting dangerous psychoactive substances while banning much safer ones. Some noble Lords have referred to cannabis as a dangerous substance. I would completely agree that skunk, high THC cannabis, is dangerous but there are other forms which are absolutely not. Professor Curran is clear about that and certain forms of cannabis can, indeed, be good for you.
Another definitional problem relates to food. Apparently, a food is a substance which is, “ordinarily consumed as food” and would be exempt. However, what about a food containing a psychoactive substance which is only consumed by rich people or an ethnic minority and not ordinarily consumed as food? Rudi Fortson QC raised this and many other issues with me and questioned how a court could decide on whether a food was a food or not, depending on who ate it. There is a genuine problem there. From paragraph 10 of Schedule 1, it seems that a food is exempt if it contains a psychoactive substance which occurs naturally in the product and which is authorised by an EU instrument. Have the Government thought through all the foods in which a psychoactive substance—using the Government’s sweeping definition—naturally subsists but which might not be covered by an EU instrument? There may well be eastern, or other different, foods which would not be covered. For example, do flavourings and spices, which are obtained by a process of extraction and widely used in food, satisfy the expression “naturally occurring” in the substance?
Lord Bates
I thank the noble Baroness for introducing this amendment. I am conscious that if I had had the opportunity it would have been impolite to have sought the advice of my noble and learned friend Lord Mackay on the amendment because, of course, it has the heading “Republic of Ireland: impact assessment”, and goes on to tie us to a piece of legislation. The problem with that is thinking back through the history lessons and what the Anglo-Irish treaty and the creation of the Irish Free State in 1921 might have made of that strong connection. It is probably more uncomfortable for the Irish than for us, but it is an interesting tool to link their legislation with ours because we are two sovereign countries and two different systems. We approach a common problem but understandably, as we do on many different things, may choose to do so in different ways—not so, of course, when it came to this piece of legislation.
I will set out the legislation in the Republic of Ireland a little because in the headline of this debate we are invited to say what assessment Her Majesty’s Government have made of the effect of introducing a ban in the Republic of Ireland. That assessment was set out in the expert panel’s review last year since the ban in Ireland came into force in 2011 following the 2010 Act. The expert panel went away and evaluated that. I have a long section in my speaking notes which I will try to avoid reading out and I will just cite it. Page 38 of the expert panel’s report sets out the basis by which it concluded that there was evidence that this was the model which should be followed. In addition to that on page 38 there was also the Scottish Government’s—
Baroness Meacher
It may be relevant to note on the record that when the BBC journalist began interviewing a very senior official, that official said, “Oh yes, the ban has been going well”, and it was only through rather expert probing by the BBC journalist that gradually the truth came out that the ban was not working at all as anticipated. So in terms of an expert panel from Britain going over, I think we need to be aware that the Government need to do more work on Ireland.
Lord Bates
I will come to that in just a minute because it is a specific point which the noble Baroness, Lady Bakewell, raised in the earlier debate on the issue of the “Newsnight” report, of which I have read a transcript although I did not actually catch it last night. I want to address some of the points in there. What I am going through is the methodology by which we arrived where we were. Taking the amendment at its word, we are effectively deciding whether we should delay the progress of the UK introducing the new psychoactive substances legislation and the blanket ban in order to undertake an assessment of how effective the 2010 Act has been in the Republic of Ireland. Our view on that is no, because that assessment has already taken place in the expert panel review and—
Lord Bates
Of course we will take it into account, but should we necessarily stop taking our own advice and implement what has been recommended to us until that time happens? Of course this is a fast-moving world in which there are very devious forces—“ingenious forces” is the correct term—using their dark methods to perpetrate these drugs, which are blighting the lives of communities. That was a key message that came out of the “Newsnight” documentary. Here was a community that was absolutely blighted. Unless I actually misread the transcript that I saw, the people there certainly were not saying, “Hey, listen, let us just have a free-for-all”. They were saying, “Where are the Gardai? Where are the police? We want them to come down, because these drugs are running rife in our community”.
Of course, there will always be chancers—we will come up with one answer to this, then people will come up with something in response, whether it is on the dark web or elsewhere. One of the wonderful things about this House is that the noble Baroness, Lady Meacher, who is an acknowledged expert in drug policy, mentioned the dark web, while behind her sits the noble Baroness, Lady Lane-Fox, who can offer her a tutorial on the dark web if required. The point is that we are all moving in the same direction.
I am conscious of the figures that have been put out in the Eurobarometer poll, which talked about the level of usage. This figure should be viewed with caution, because: the sample for each member state is relatively low, at 500 respondents; the questions used have changed over the years, making comparisons over time less reliable; and the Eurobarometer survey tends to overestimate usage when compared to more robust surveys.
As I touched upon earlier, we can say categorically that prior to the introduction of the Irish legislation in 2010, 102 head shops were operating in Ireland. After the legislation came into force, the trade virtually disappeared, and the Garda drugs unit told the BBC just last week that the head-shop trade has gone. Furthermore, no Irish-domain web pages selling NPS are still in operation. Those are examples of concrete progress. They may not address all the points, but I hope that they might demonstrate to the noble Baroness that the Government have considered this.
Baroness Meacher
One has to think about whether the demolition of the head shops is a positive or a negative when you consider that the young people will have moved from the head shops, which do not sell very dangerous substances, into the dark web and the back streets, where they will buy very dangerous substances that are completely unknown to them, which probably do not have any kind of labelling at all.
Lord Bates
We can debate what benefit labelling that says “Plant food” or “Not for human consumption” is. The fact is that the head shops are absolutely at the heart of this problem. I, for one, will be very happy if they are removed from our high streets, as will the Local Government Association and countless parents who are worried about the availability of drugs—earlier I gave an example from Canterbury. On that basis, I hope that the noble Baroness will consider withdrawing her amendment.
Baroness Meacher
I thank the Minister for his reply. Obviously, like the noble Baroness, Lady Hamwee, my expectations are not massively high at this stage of proceedings, but I look forward to discussions with the Minister between now and Report on some of these issues. I have a great regard for the Minister with regard to his willingness to listen and certainly to learn from professionals who, with any luck, will be able to come to a meeting with us. On that basis, I beg leave to withdraw my amendment.
Baroness Meacher
“Monitoring
Following the commencement of this Act, the Secretary of State must publish a report annually setting out the impact of this Act, including on deaths and other harms caused by all controlled and banned substances.”
Baroness Meacher
My Lords, Amendments 4 and 6 seek to ensure that following commencement of the Act, the Government will undertake an annual impact assessment of the Act—as the Minister has indicated he might be willing to do anyway—including an assessment of,
“deaths and other harms caused by all controlled or banned substances”.
The important points in that sentence are “all controlled”, under the Misuse of Drugs Act, and “banned substances” under the Bill. Of course there is always an interrelationship between those two groups of substances, as I mentioned in an earlier debate. In addition, the Government would have to,
“publish a report annually setting out the impact of this Act”—
again, including information about the impact on the number of deaths and other harms caused by all these controlled and banned substances.
The point behind these amendments is that, as I mentioned earlier, we do not have two separate markets: one for substances controlled under the Misuse of Drugs Act 1971 and another quite separate one for psychoactive substances that will be controlled under this legislation. The reality is that once substances are illegal, they join a single market and are purchased from the same illegal drug barons or from the web. This is an absolutely crucial point, which runs through a number of these amendments. Social media are also absolutely vital in this. It is through social media that young people immediately communicate about a banned psychoactive substance or something new arriving from somewhere, or that a traditional drug such as ecstasy has suddenly become more pure, and the young people will all rush into that area of the market rather than moving from one market to another.
Baroness Chisholm of Owlpen
The noble Lord is right: I was rather remiss in not saying that I was sympathetic to his views on this issue, and I apologise. We will certainly consider it between now and Report.
Baroness Meacher
I just want to explore the point in Amendments 4 and 6 that, because there is only a single market that incorporates all the controlled drugs under the 1971 Act and psychoactive substances, post-legislative scrutiny will not make any sense unless it looks at the overall impact of this Bill. For example, what we can expect to happen is that if you ban synthetic cannabis, people will move straight over to the cannabis controlled under the Misuse of Drugs Act. If you ban a substitute for cocaine, people will move straight back to the natural cocaine, if you like, that is controlled under the Misuse of Drugs Act. In order to assess the impact of the Bill, it will be essential to look at the overall consumption of illegal, banned drugs and the deaths from those drugs. The deaths may move across from one type of drug to another, as would the harms and so forth. It is essential that the Government begin to look at this as a single, illicit market for banned substances. Does the noble Baroness agree that, therefore, post-legislative scrutiny has to look right across the piece?
Baroness Chisholm of Owlpen
I thank the noble Baroness for her points, and I agree with her. However, it is important that we do not tie the hands of the committee. It is up to it to review, going forward, and we have to let it decide what it feels is right.
Baroness Chisholm of Owlpen
I thank the noble Lord. I have a lot of sympathy for what he said, and I think that it is right for us to go away and reflect on this and come back at Report. Of course, the Home Office has every intention of reviewing the Bill once it is implemented. We just do not feel we should put such a commitment in primary legislation. It is in our interests to consider the impact of this Bill and how the psychoactive substance market is changing to ensure that both our legislative and non-legislative responses are as effective as possible. Having said that, of course we will go away and think further on this.
Baroness Meacher
My Lords, I thank noble Lords who contributed to this debate, particularly the noble and learned Lord, Lord Mackay of Clashfern, for his helpful proposal that there should be post-legislative scrutiny by a Joint Committee. I hope that that can come about. I agree with the noble Lord, Lord Howarth, that that sort of scrutiny does not detract from the need for the Government’s post-legislative scrutiny, so I think that we are all going in roughly the same direction.
I was very pleased with the noble Baroness’s response about the recognition of the single market for these illegal drugs, because it would be an enormous step forward if we stop seeing these things as separate and start examining what is going on across the piece. That has all been extremely helpful. The timeframe is an issue: three to five years seems an awfully long time particularly as some of us do not really expect this legislation to work, especially bearing in mind the Irish experience. It is a great pity—Ireland is now four years on and still wondering what to do.
Given all of that, this is Committee and we have had a useful debate on this issue. I look forward to meeting Ministers between now and Report. On that basis, I am more than happy to withdraw the amendment.
Baroness Meacher
Baroness Meacher
My Lords, in moving this amendment, I will also speak to Amendment 8. I apologise that these have all come one after another and I was not anticipating that, but I will speak extremely briefly, noble Lords will be pleased to hear.
These amendments seek to limit the scope of the Bill to those substances that are synthetic—produced by chemical synthesis rather than grown naturally. The Government’s manifesto commitment, if I understand it, was to ban new psychoactive substances. All such substances identified by the EMCDDA have been of a synthetic nature. To broaden the scope of the ban beyond the limits of substances that are synthetic will create far more unintended consequences than I believe the Government really had in mind.
The point behind this amendment is that the Bill as it stands is disproportionate and will engender an intolerable degree of legal uncertainty for an awful lot of people—researchers, medical people or whoever—who have no interest in consuming these substances but may be involved in handling them. Actually, one should extend that to people who are in the commercial sector trading, producing and so forth who may need to use these substances and really do not want to be questioned by the police.
It would be helpful to know why the Government have extended the scope of the Bill to include natural psychoactive substances. Are the Government aware that there are many natural substances, included in perfumes and other products, for example, which could be caught unintentionally by the Bill as it stands? We had a debate earlier about the whole business of definition and in a sense that comes up here again. Things might be a bit simpler if the Bill were limited to synthetic substances. Will the Minister explain to the House what investigations have taken place to establish the unintended consequences of the extension of this definition to include natural substances? I beg to move.
Baroness Hamwee
My Lords, my noble friend and I have Amendments 9 and 10 in this group. Amendment 9 presents me with a dilemma, given the comments that we have been making about what has been happening in Ireland. Amendment 9 would import into the Bill the Irish definition in terms. Given where we are and given that the definition in the Government’s Bill is more telegraphic than the Irish one, I would nevertheless like to hear what the Government have to say about the differences.
I and other members of the Committee will have received from the Minister a response to points made at Second Reading, for which I am grateful. In response to one point that I made, the Minister wrote that,
“we have retained core elements of the Irish definition but sought to refine it so as to make it more concise”—
given the length of most of our legislation, that is not the most persuasive argument that I have heard—
“by removing reference to different substances and behaviour changes, and remove the element of subjectivity inherent in … the word ‘significant’”.
I understand that the Government do not want this to be read subjectively, but can I add a thought? Different people react differently and they react differently to different drugs. We have heard that. There is something in the connection between that and subjectivity and maybe neither of us is quite right, but there is an issue there. The Minister talked about removing reference to behaviour changes. The point about the Irish definition is the impact on behaviour changes.
The second limb of Amendment 9, which is not an addition to the first because it does not qualify the first, refers to the substance having the capacity, as in the Irish definition, to,
“cause a state of dependence, including physical or psychological addiction”.
We are told that that has been removed because the Government have,
“concluded that this was captured as part of affecting a person’s mental functioning or emotional state and was unnecessary duplication”.
That surprises me. The Irish looked on it as an alternative in their definition. Perhaps the way I can best put it is to ask how the scientists look at this. I would have thought it was completely separate from affecting mental functioning or emotional state and is therefore not an unnecessary duplication.
Lord Bates
I am not sure at whom that question is directed. I could, of course, easily answer but I am sure that the author of the amendment would want to deal with it personally.
Baroness Meacher
I thank the Minister. I also thank all noble Lords who have contributed to this debate. I spoke extremely briefly but it has proved a very illuminating debate. We have drawn out a number of issues, and I am grateful to the Minister for his reply and for agreeing to write to us about these matters. I hope that in that letter he may be able to answer the question of the noble Baroness, Lady Hamwee, about herbal remedies that are genetically modified, because I would not presume to take the place of a Minister in these matters.
Could the Minister also clarify whether, in tweaking the Irish definition of psychoactive substance, the Government have gone back to the Irish and to their experts to seek their opinion on whether this adjustment to the definition will overcome the apparently insuperable problems that the Irish have encountered? It is incredibly important that we accept and acknowledge that the ban in Ireland has failed and that we make sure, before this Bill is through, that it is adjusted as necessary to become a useful tool in the armoury of government drug policy. With that I am content to withdraw the amendment.
Drugs: Cannabis
Baroness Meacher Excerpts(10 years ago)
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Baroness Meacher
To ask Her Majesty’s Government whether they have any plans to reschedule cannabis from Schedule 1 to Schedule 2 to the Misuse of Drugs Regulations 2001 to enable its use for medicinal purposes.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, the Government have no plans to reschedule cannabis. There is clear scientific evidence that cannabis is a harmful drug which can damage people’s mental and physical health, and which can have a pernicious effect upon communities. We will not undermine our continuing efforts to reduce drug harms or circumvent the regulatory process by which drugs are assessed by the Medicines and Healthcare Products Regulatory Agency for their safety and efficacy as medicines.
Baroness Meacher (CB)
My Lords, nine European countries, including Germany and Italy, as well as many other countries across the world, provide access to medicinal cannabis for patients who really need it, while some 30,000 people in this country risk a criminal record in order to take medicines based on cannabis that they need to alleviate their pain and suffering. Will the Minister agree to look at and consider the human rights aspect of UK policy, and will he make the findings of that assessment available to your Lordships in the Library?
Lord Bates
The noble Baroness has a long-held position on these issues in terms of her role in the All-Party Parliamentary Group for Drug Policy Reform. Obviously that is a respectable position but it is not one that is shared by the Advisory Council on the Misuse of Drugs, which advises the Home Office on drugs misuse. The council’s view is that the case is not made. Where there are derivatives from cannabis, as has recently been the case, applications can be made to the Medicines and Healthcare Products Regulatory Agency. In fact, in one particular case, which is that of Sativex, the licence to market has actually been granted.
Psychoactive Substances Bill [HL]
Baroness Meacher Excerpts(10 years, 1 month ago)
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Baroness Meacher (CB)
My Lords, I welcome the Government’s commitment to reducing the risks of drugs to our young people. I also thank the Minister for spending time discussing the Bill with me last week.
I start with the views that the Government and I have in common. We all agree that it is most unhelpful to criminalise young people. From my point of view, the best feature of the Bill is that it does not directly criminalise young people for simple possession or use of psychoactive substances. Also, we all want to reduce deaths of young people from drugs. We want to see a reduction in the incidence of drug addiction. We agree that to ban the most dangerous drugs is necessary, if only to give a clear message to young people that these should not, on any account, be taken. So far, so good. Now let us consider each of the above points and ask whether the Bill will achieve what the Government, I and others hope it will.
First, on deaths from drugs, the argument has been that some 97 people died in 2012 from synthetic psychoactive substances, with similar numbers in other years. In fact, I think that the number is probably nearer 60. The important question is: would a ban reduce the number of such deaths? Unfortunately, it seems not. The experts tell me that all but about five of those deaths resulted from young people taking banned substances—not necessarily even psychoactive substances.
Indeed, I am told that in Ireland, which introduced a blanket ban in 2011, deaths have actually increased. On the basis of existing evidence, therefore, if the Bill has any effect on deaths it is likely to increase them, rather than reduce them. In Poland, too, which introduced a ban on psychoactive substances, the number of poisonings three years after the ban had risen above the pre-ban level. I understand that when the President left office he was asked what his worst mistake was. He said it was the psychoactive substances Bill.
Will the Bill lead to a reduction in the incidence of drug addiction? Sadly, it would appear not. Following the Irish ban, head shops closed wholesale, as others have said. As a result, the market has been driven underground. The Irish advisory committee report expressed concern that it appeared that, as a result of slightly earlier bans, young people had moved back to taking traditional drugs, including cocaine, ecstasy and cannabis. Even heroin use had increased. Also, the web trade in synthetic psychoactive substances is apparently thriving in Ireland. According to the experts, the use of synthetic substances in Ireland is the highest in Europe, despite the 2011 ban—or perhaps because of it; we do not know.
Not only has Ireland seen an increase in the use of synthetic drugs following the ban, but the banned drugs are, of course, far more dangerous today than they were before. They can be purchased only from illegal drug dealers or through the web. Such dealers have no interest whatever in the health of the people who buy materials from them. They regularly mix the drugs with other agents, as we all know, including poisons that cause untold damage and, indeed, death. That is why the deaths issue is far from straightforward. Also, a ban on all synthetic substances means that, by driving them to the dealers or on to the web, young people have no idea what they are taking. This may be the worst aspect of drug taking in this country and elsewhere.
Head shops, on the other hand, want to look after their customers. They do not want to kill or even to harm them. They want them to come back and buy more of their delightful substances. They therefore sell the less-risky substances. Illegal drugs leading to deaths are not generally—perhaps ever—sold by head shops; they are sold in other ways. We may not like head shops, but does the Minister agree that illegal dealers and the web are both infinitely more dangerous? If so, will he discuss how we can best deal with what I call the Irish dilemma?
One of the most important ways to reduce the risk of drugs to young people is through information and education, as the noble Lord, Lord Patel, and others have mentioned. By banning all psychoactive substances for consumption—even the most harmless ones and maybe even beneficial ones—the Government will fail to give any useful message to young people. Yet messaging and education is far more useful than any law. The law has to be a message; it really does.
If, on the other hand, the Government adopted the proportionate approach of the European Union regulation, young people would immediately recognise that the drugs which were regulated were relatively safe—that is, those that are labelled with the risks and side-effects of the drug and the recommended dose. Those would be regulated drugs. Within such a system, young people would be far more likely to avoid drugs which were banned because the message would be abundantly clear—“Don’t take those; have a go at these”. That is very helpful, I would have thought. Young people really do not want to kill or seriously injure themselves. The problem is that they do not know what on earth they are doing half the time. All they need are clear messages. The Bill does not achieve that at the moment although I hope that we can turn it around so that it does. This is far too important an issue to be left to regulations. I can see that the Bill offers opportunities for regulations to achieve some of these things, but I do not believe that is the right way to do it. I will argue in Committee that we should take this seriously.
We all agree that the Government need to avoid criminalising young people, as I said. A way needs to be found in the Bill to discourage people from switching from synthetic to traditional controlled drugs for which they will immediately face criminal sanctions. They will be criminalised and the Bill will not have achieved its one really good intention—namely, not to criminalise young people. Therefore, I hope that the Minister will be willing to discuss how best to achieve this incredibly important objective. Does he agree that the penalties related to a substance should be proportionate to the risks associated with that substance? If so, will he discuss possible ways to achieve that objective, too? For example, we hope to debate an amendment to the Bill which will discourage young people from switching from relatively safe synthetic substances to alcohol. This cannot be a good thing. After all, alcohol kills about 22,000 people a year, as I think the noble Baroness, Lady Browning, mentioned. Okay, five people is five too many but five relative to 22,000 is rather a different order of things.
I turn to a few rather different points. Many widely sold drinks contain psychoactive substances. Schedule 1 refers to food, including drink, which does not contain a prohibited ingredient. Does the Minister agree that, as it stands, the Bill would ban beverages containing, for example, small quantities of psychoactive amino acid or quinine? Is tonic water to be banned? One does not want to be frivolous but it is important that we take on board the breadth of this Bill.
Similar problems could arise with commercial products where it is not clear to the authorities whether the substances are for human consumption or not. I understand that industrialists will not be at all happy to be interviewed by the police just in case their normal inputs are covered by the Bill. We need to protect industrialists and people operating in the commercial world. That is what those behind the proportionate European Union regulation exercised themselves to achieve. They did not want the regulation to bother or interfere with commerce.
Another issue concerns establishments involved in research into psychoactive substances. The Bill covers that issue to a degree but does not cover it completely, and there is a lot of worry out there on the part of researchers. Will the Government consider exempting all research units, universities and research enterprises from the scope of the Bill? It would be much simpler if people were not investigated about substances they are importing simply for their work.
Before ending, I want to touch briefly on New Zealand, as the Minister mentioned it. New Zealand tried to introduce a proportionate system whereby private companies were encouraged to pay for research into low-risk substances, and then have those products licensed. It is true that the system did not produce any licensed substances because the costs were too high for those businesses. If the Government were willing to create a rational, successful policy, they could do so, but the research would have to be funded by either foundations or the state, or perhaps a mixture of both. Such a system could be incredibly cost-effective because of course drugs are incredibly costly to the taxpayer, in criminal justice costs, health costs and so on. If you had a number of licensed products—properly labelled and all the rest of it—that young people could take safely, you really might save an awful lot of money for the taxpayer.
In conclusion, new psychoactive substances offer real opportunities for a sensible Government—and I believe this is a sensible Government—to achieve a rational drugs policy which would create a safer world for our young people. I hope we can all work constructively together to achieve that objective.
Lord Farmer (Con)
My Lords, I support the Bill, not least because it is a good example of why we should take the needs of families into account when setting the legislative agenda. It is my firm belief that we should consciously seek to strengthen families throughout the legislative agenda. This means backing parents as they seek to raise their children with clear boundaries, and protecting young people from those who would seek to profit from their misery. As has been noted throughout this debate, we really are concerned with young people—they are who we keep on mentioning; it is not the older generation but young people we are concerned with.
Our debate is all the more poignant because, according to yesterday’s papers, one young woman remains in hospital after five young people were admitted over the weekend suffering from the effects of taking one such legal high, which was sold openly to them at a festival. It is this human tragedy and the effects on families that should move us to act. It is clear that a rising number of families are being ripped apart by these drugs. Although the shadowy nature of the drugs makes estimation difficult, the signs are there. We have heard a lot of statistics today, but the number of police incidents involving these drugs, including domestic abuse, has gone up by more than 150% in the past year. More people—mostly young, as I have said—are being admitted to hospital. More are entering addiction treatment dependent not on illegal drugs but on this new generation of substances. Tragically, as we have heard, the number of deaths linked to these drugs is rising.
Part of the blame must lie with the sellers, but it also lies with the inadequacy of the law as it stands. Repeatedly, people have said, “They are available in the shops, I thought they were safe”. What help are we providing to parents if we continue to allow this confused state of affairs? On the one hand, we say through the law that certain substances such as cocaine or heroin are bad and should not be available; on the other, we say that substances that produce the same or worse effects are freely available to buy in high street shops—the so-called head shops. The targeting of children is particularly egregious and reveals the intentions of the sellers. Despite being labelled as not for human consumption, these substances are often packaged like sweets and sold at pocket money prices. As numerous undercover reports have found, the sellers know exactly what they are doing and provide advice on how people should take the drugs. It is this availability that is part of the danger to the young. How can parents hope to educate and protect their children when the Government send out such a confusing message?
I want to address those libertarian arguments that people have the right to do whatever they want and government has no right to intervene. With regard to this debate, I am afraid that such an approach does not take into account the realities of life or how people lead their lives. It also abrogates our responsibility to protect the most vulnerable in our society. First, the effects on others in society of those who have consumed these drugs can be profound, which impacts the freedom of others. Beyond the burden on public services—and thereby the taxpayer—we should note the increasing reports of assaults, violence in prison and domestic abuse, all related to the consumption of these drugs.
More importantly, we have a duty, as I say, to protect young people, who are not deemed to be responsible adults. The evidence from Ireland, which we have heard much about this afternoon, is that banning the high street sale of these drugs works to protect young people. I have evidence here which is possibly in contrast to that of the noble Baroness, Lady Meacher. The Centre for Social Justice spoke to doctors in hospitals across Ireland last summer, and the message that came back was clear. In 2010, when the ban came in, the number of admissions of young people suffering the effects of these drugs was greatly reduced. One doctor said that the difference was like night and day. This was because the number of head shops went from more than 100 to fewer than 10.
With the internet as an alternative source for these drugs, your Lordships might find it counterintuitive that young people were accessing these substances in high street shops at all. There have been several suggestions as to why this was the case. First, young people think that because the substances are available to buy in a high street shop, they are somehow regulated and therefore safe.
Baroness Meacher
One possible explanation for the drop in people going to hospitals when a ban is introduced is that they are nervous of turning up there having taken an illegal substance. It is possible that the increase in deaths may have something to do with people not going to get the help that perhaps they needed—but we need some more research into these matters.
Lord Farmer
I thank the noble Baroness for her intervention and I take note. Secondly, young people do not necessarily have access to credit cards with which to make online purchases. Thirdly, they might not like the idea of having these drugs delivered to their parents’ home. Whatever the case, the results were stark and the doctors were supportive of the ban. It is of course not the entire solution. Enforcing this law so as to tackle the supply online will be key. What plans does the Minister have to discuss the implementation of the ban with the National Crime Agency?
We also need to ensure that addiction treatment services are available to those who need help. Local authority budgets are, as we all know, strained and everyone is having to make adjustments. However, helping people off drugs and into work is surely an investment worth making. Crucially, we must make sure that prevention, early intervention and education are priorities. We know from prevention science that any message that children receive at school must also be backed up by what they hear at home. This ban will send a clear signal to children and parents that these substances are dangerous and should be avoided. Rather than undermining parents’ authority, the law will put us back on their side. There is no silver bullet—I think that we all agree on that—but as part of a broader response, this action is necessary and proportionate. It is our duty to protect the vulnerable and the young—and so I, too, welcome the Bill and wish it well on its passage through the House.
Lord Tunnicliffe
My Lords, I rise in the somewhat uncomfortable position of speaking from the Opposition Front Bench to support the generality of the Bill. I hope this will not be a role I shall have to take too often, since Oppositions normally disagree with Governments.
The Bill before us is quite simple. It is interesting that today’s debate has, in many ways, not been about the Bill. Today’s debate has been about the essence of drug policy. A number of noble Lords have said—I praise those who have said it, such as the noble Baroness, Lady Hamwee—that prohibition does not work. That is not the position of the law at the moment, of the Misuse of Drugs Act 1971, of the Government, of the Opposition, or of a majority of the general public. There is a belief that prohibition works and the law seeks to enforce those prohibitions. Debate on decriminalisation—that is what much of the debate has been—has been interesting, but it is not what we seek to do.
Baroness Meacher
I just want to raise the point, which has already been mentioned, that it is absolutely clear to everyone involved that across the world and certainly across Latin America, which has been most severely affected by prohibition, prohibition has not worked.
Lord Tunnicliffe
The debate will proceed smoothly if we recognise that I am in a minority. I repeat: prohibition is the policy of the Government and of the Opposition, and it is supported by the majority of people in this country. There have been many interesting speeches, but they have not persuaded either major political party or the general public that that is the way to go.
I put to noble Lords who have that belief that probably the worst place to start with decriminalisation is with NPSs. The whole problem with NPSs is that they are drugs of unknown consequence. The debate about alcohol—I entirely recognise the point that alcohol has serious negative effects, but, as a user, I have to say that it also has some really rather nice, positive effects—should be addressed through education. I entirely take the point brought out by the noble Earl, Lord Sandwich, and by my noble friend Lord Patel that prescribed drugs can have extremely serious effects when mismanaged, but the problem with NPSs and why they should be added to the prohibition we presently have is the unknown consequences. Ultimately, the goal of the manufacturers of these drugs is to create drugs every bit as potent as the presently proscribed drugs and to sell them to our young people, our old people, our hard-working people and our lazy people.
We support what the Bill is trying to do. It is intellectually extremely simple. It basically says that this is a race that is impossible to win, through which dangerous drugs are introduced to the markets, the merits of their impact are then determined and only then are they banned. It is a race that we simply will not win—the criminals will run faster. For that reason, we support the intellectual concept that we ban the generality and then make exceptions. Either you live with that concept and support the essence of the Bill, or you do not.
I have heard a number of speeches essentially saying that noble Lords do not support the essence of the Bill. I praise in particular the noble Lord, Lord Kirkwood, for his unambiguous statement that he will oppose the Bill. That is fair enough and I see where he is coming from; I just do not happen to agree with him and nor do the Opposition. I find it difficult to understand how he can say that after the speech of the noble Lord, Lord Paddick.
Part of the Bill could be interpreted as moving into the area of harm: the regulatory powers in Clause 3. Clause 3 allows the Government to add to the list substances which are harmless or negligible in their impact, as the noble Baroness, Lady Meacher, said. The Opposition cannot think of such substances or envisage such a situation, but clearly the Bill allows for it. It is arguable that providing that absolute ban and an absolute power in Clause 3 to add new substances to Schedule 1 should be better defined. I would like the Minister to explain further how Clause 3 will be used. What will be the criteria, and the process, for allowing a new substance to be added to Schedule 1? If somebody develops a safer form of alcohol with a different molecular structure, how would they set about getting it added to the list? I do not believe there is a safer form of alcohol; safer consumption is all about education. However, if a safer drug was developed and it came under the terms of the Bill and was introduced, what processes would the manufacturer of such a drug follow?
There are also absolutely proper concerns about research and industry, which were mentioned by a number of noble Lords, including the noble Baronesses, Lady Hollins, Lady Browning and Lady Meacher, and the noble Lord, Lord Kirkwood. The Government must go out of their way to convince us that those concerns are met. We have to recognise that research is not just about finding out what we do not know, but finding out what we do not know about places where we may not want to go, because you have to understand the environment in which a situation arises. You may be doing research that leads in a direction with which the Government feel uncomfortable, but that is no good reason to ban research that is better informing the debate about drugs. Research establishments, especially established ones with good ethics policies—I am sorry to be rather conservative about this—that know which research to do and how to do it, should have a pretty easy ride in getting their processes approved under Clause 10.
The other area on which I think there is consensus everywhere except in the Treasury is that the non-legislative thrust of the anti-drugs policies should be greatly strengthened. The £180,000 that the Government have almost boasted of spending in this area is pitifully inadequate compared with the problems we are addressing. Therefore, I hope that the noble Lord, Lord Bates, will be able to assure the House that the education and prevention programmes referred to in paragraphs 12, 13 and 14 of the Angelus Foundation literature and the education of professionals to stop prescribed drug abuse activities will be undertaken in parallel.
I hope that the Minister will also be able to assure me that the programmes outlined in the October 2014 government response to the new psychoactive substances review expert panel report still stand, given that that review was published under the coalition. Are the new Government conservative in tooth and claw, as it were? Will they stick to the non-legislative concepts that they promise to stick to in the response, and try to ensure that such efforts are every bit as vigorous as the legislative efforts?
The Bill takes a sensible, proportionate and progressive approach to enforcement. It has the concept of the notice, the order and the criminality. I welcome the fact, as other noble Lords have done, that it is not criminalising simple possession and use, but the problem with that flexible approach is that it needs to be co-ordinated between many local authorities, police forces and the National Crime Agency. I would therefore like an assurance from the Government that the right amount of effort will go into providing guidance to make it work at a local level, and that there will be proper consultation with people who understand this area about providing that guidance. We have heard a number of concerns about the consultation that has gone into the Bill.
On a more detailed point, I dutifully read the Bill, the notes and all the relevant paperwork; I almost feel that one should get a medal for that. But I am still unclear about the “not for human consumption” loophole, so I seek an assurance from the Government that that loophole, which has been used in the past, is properly covered by the Bill.
Finally, the noble Lord, Lord Farmer, raised the issue of international co-operation. The Government should assure us that there will be vigorous efforts to co-operate with our friends in Europe—at least, my friends in Europe—because the extraterritorial jurisdiction issues in this area are very complex, and the more co-operation we can have worldwide, the more effective we will be. But I come back to the fact that we believe in prohibition. We believe the loophole is a dangerous one, and we believe that this Bill is a sensible way of plugging it.
Queen’s Speech
Baroness Meacher Excerpts(10 years, 1 month ago)
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Baroness Meacher (CB)
My Lords, I applaud the right reverend Prelate the Bishop of Salisbury on his excellent maiden speech. It is an honour to be able to welcome him to your Lordships’ House and on behalf of noble Lords to recognise his wide range of interests and areas of expertise: not only the environment but also the needs of disabled people, including deaf people—which he mentioned in his maiden speech—music, and areas of particular interest to me, namely ethics, psychotherapy and counselling. Many of us will be seeking his support in the months ahead.
On the subject of my contribution today, I welcome the opportunity presented by the Psychoactive Substances Bill to have a detailed debate over the coming weeks about how best to reduce the importation and use of high-risk psychoactive substances. To many, this seems a narrow, rather insignificant issue, but it touches on one of the four major global issues of the 21st century. These are terrorism and security; climate change; the destruction of our seas through pollution; and last but not least, international crime, including very substantial levels of drug-related crime and associated violence and corruption.
The UK has one of the toughest drug policies, yet one of the highest levels of high-risk drug use of any western European country. My perspective on the proposed Bill is informed by the inquiry into new psychoactive substances that we undertook for the all-party parliamentary group for drug policy reform. We considered evidence from more than 30 organisations, including ACPO, the ACMD and other government bodies, professional associations and very senior medical and scientific experts. The evidence showed that to reduce the use of NPS, any policy must take account of the interaction between the markets for traditional and new drugs. I have to say that I am not convinced that the proposed law yet does that.
One aspect of the Bill I strongly applaud is the apparent aim to limit the proposed ban to the import or supply of NPS, while avoiding criminalising the users of these drugs if they are not also an importer. Drug policies that avoid criminalising young people have tangible benefits to individuals, families and communities, and do not lead to increased levels of addiction. The challenge of responding to the growing use of psychoactive substances offers an opportunity for government to develop policy on the basis of scientific evidence about effective strategies for the first time for 50 years.
Last year, this House debated the European Commission’s regulation on new psychoactive substances. The Government persuaded Parliament to opt out of that regulation because of a strong belief in subsidiarity. I happen to agree that subsidiarity should be the default position, but drugs is one of four key areas where we really do need policy that reaches across national borders. I therefore hope that the proposed Bill can be brought as far as possible into line with the regulation.
What would that mean in practice? The regulation which has been approved by the European Parliament but not yet by the Council, introduces a policy of action proportionate to the level of social, health and safety risks of the drug. That is absolutely critical if the provision is to be taken seriously. Substances that pose severe risks will be submitted to permanent market restriction. The Commission document recognises the harms these substances can cause to the health and safety of individuals; we know they can cause death, injury and disease.
The risk of the proposed ban on “head shop” sales of psychoactive substances is that young people will turn to back-street dealers or the internet, both of which are even less responsible than “head shops”. It has been suggested to me that the Bill could therefore increase the risks to young people, unless we can mitigate those risks.
A blanket ban on new psychoactive substances could prove a serious impediment to UK university-based research into the physiological properties of such substances. Such research is needed before clinical trials can take place. We need to address this issue when we consider the Bill.
Psychoactive substances have other, legitimate uses. The Commission’s regulation specifically takes account of the fact that individual national measures such as those proposed by the Government disrupt trade in legitimate uses of these substances. We will have to look at that issue. Adjusting the Bill to bring it more into line with the regulation would ensure the free movement of psychoactive substances for commercial, industrial, scientific and medical purposes, while providing a graduated and proportionate set of restriction measures for substances posing risks. I wholeheartedly support such controls.
The key point is that a blanket ban will not achieve the Government’s objective. It will not bring about the reduction in the overall use of dangerous drugs that we all want to see. The government agencies that gave evidence to our inquiry made it clear that it is not possible to intercept more than a tiny fraction of the legal highs coming through in packages from China and India to people’s homes. The best hope is that if government policy were logical and sensible, young people might take it seriously. If reasonably harmless psychoactive substances were legal and the more risky ones—one might call them the more dangerous ones—were banned, young people would take note. They do not want to harm themselves but they do not know what they are doing, and I do not think that this Bill necessarily helps.
I look forward to working with the Minister, as I have done before, in a constructive way to generate a Bill which will create a safer world for our young people.
Serious Crime Bill [HL]
Baroness Meacher Excerpts(10 years, 4 months ago)
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Baroness Howe of Idlicote (CB)
My Lords, Amendment 5 after Clause 70 is clearly a well intentioned measure, but I am concerned that if mandatory reporting of FGM is implemented in isolation it could have unintended consequences. Like my noble friend Lord Patel I am worried, in particular, that professionals will have no discretion and will be obliged to report, even when it may not be in the best interests of the child. The evidence from other countries where mandatory reporting of child abuse in general has been introduced suggests that there could be similar unintended consequences if a duty was introduced for FGM. Most notably: women and girls could be discouraged from seeing healthcare professionals because of concerns about catapulting themselves or friends and family into criminal investigations; professionals may seek to avoid discussions that could lead to disclosure if they are fearful of the consequences; and individuals would be likely to report on any occasion when they come into contact with a girl who they believe has undergone FGM, resulting in a girl being visited by police or social workers on multiple occasions in the short space of time before they are 18, which could be a fairly traumatising experience.
Will the noble Baroness please clarify what would happen in instances where the duty to notify police of FGM is not in the best interests of the child? Surely it is vital that the guidance on this piece of legislation is fully and carefully considered, and that experts who deal with these cases are fully involved. Can she also clarify the intentions for the guidance on how this duty will be implemented, and confirm whether this guidance will be subject to full consultation?
Baroness Meacher (CB)
My Lords, I add a few words of strong support to those of my noble friends Lord Patel and Lady Howe. It seems that this is trying to deal with the problem after the horse has bolted. As the Minister knows, we argued at length earlier in discussions on the Bill about the need to tackle this matter at source, where these ideas are being pressed—by the leaders and religious leaders of some communities who believe that this is necessary to save you from hell and such matters. To go down this road will be quite dangerous, because there will be an inclination by families and communities to hide these children from view. Not only may they not seek medical attention—that would be incredibly serious, as my noble friend Lord Patel has said—these girls and women need extra healthcare and may get none at all if they are hidden away. But you can also imagine that these children may be hidden away from “ordinary” English schools, because teachers may come to know about what has happened, and these families and communities will be under more pressure to set up separate schools, not integrating with our society. That would be absolutely retrograde to encourage in some way.
Obviously this is an unintended consequence. I am sure the Government’s motives are utterly right and pure, but these things can have the most devastating unintended consequences, and one can just imagine the greater isolation, being kept away from healthcare, schools and so on. These children will be incredibly vulnerable if these amendments go through, and I put on record again that we need to tackle FGM—and my goodness, we need to tackle it—at source. It is probably far too late in the day, but really it is the community and religious leaders who need to be stopped when they are preaching non-authentic Hadith and pressing for FGM on that unauthentic basis. Even at this late stage I plead with the Minister to take a step back and think whether this is the right way forward. I profoundly believe it is not. The most eminent QC in this country, Dexter Dias, who knows about these things, would say the same. Go to the community and religious leaders; do not try and deal with this after the event when these children have already been tortured.
Baroness Smith of Basildon
My Lords, what is always clear when we debate FGM issues is how complex they are. I think that the law of unintended consequences has been discussed throughout our debates. I have just read again the letter from the Minister, Karen Bradley, to Seema Malhotra MP setting out why the Government have brought this new clause forward. A consultation was held on 5 December on how to introduce mandatory reporting for FGM. As other noble Lords have said, it is a little strange that we did not have the benefit of that consultation when we held our previous discussions. It would have been helpful to have the consultation and the Government’s response, but they were not made available to us, although the other place did have the benefit of seeing them when it discussed these issues.
The purport of the amendments which have been put forward in your Lordships’ House on this issue is not just to deal with the problem afterwards, but to prevent it happening in the first place. It is also about sending a strong message that FGM is something we cannot tolerate at all. I have some concerns about mandatory reporting, but it is to be hoped that they can be addressed in the guidance and the review process. I think it is clear that we need to ensure that where health professionals are aware of instances of FGM, they should report them so that action, whether that be medical or legal, can be taken. The concerns which have been raised are ones that the Government will want to address when they are considering the guidance. If they find that there is any evidence of women not presenting to medical practitioners for care during pregnancy, it should be examined.
Baroness Meacher
I just want to check whether the noble Baroness agrees that reporting to the police could actually deter families from taking these children to the health services. In saying that reporting needs to happen, I am very worried if this goes to the police.
Baroness Smith of Basildon
I am not sure that I accept that a family whose daughter had undergone FGM and became seriously ill would not want that to be dealt with. It is quite a big jump to make, to put pressure on a family in that way. The noble Baroness says that they will not, but if that becomes evident, the Government will have to look. As I said, I have slightly conflicted views on this, but the House of Commons, I am sure, had the benefit of the consultation—although that was slightly split. I look forward to the response from the noble Baroness the Minister.
I come back to the point on legal aid. One issue that I raised with the Minister in earlier debates was whether legal aid would be available for FGM orders. At that time, she was unable to confirm that they would. We raised the point that without such legal aid, which is available for forced marriage orders, there would be no FGM orders. The point about prevention, which the noble Baroness made, is that unless you have the orders, there is not going to be prevention of FGM. We have had several conversations; the noble Baroness promised to write to me on several occasions, and I think she was frustrated that no correspondence was forthcoming. I am pleased now that the Government have confirmed that legal aid will be available for FGM orders. So we support the new clause, but I would be grateful if she could address some of the points raised in this debate, because justified concerns have been raised. That does not take away from the fact that the whole purpose of this is to try to prevent FGM from ever occurring and women from suffering such abuse.
Serious Crime Bill [HL]
Baroness Meacher Excerpts(10 years, 8 months ago)
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Baroness Smith of Basildon
My Lords, I am sorry not to hear further from the Minister about her amendments. We had a very helpful and productive debate on Report, where it was clear that your Lordships’ House was united in a desire to tackle FGM. The government amendment was welcomed, but it was agreed that the issues raised by our amendments, which I have again tabled today, were both valid and reasonable. There was no policy disagreement; the difference was one of approach and what would be most effective in achieving the aims that we all share.
The noble Lord, Lord Lester, emphasised the need to use civil law and family courts. The noble and learned Baroness, Lady Butler-Sloss, agreed with him and said:
“I would like to see what is good in each set of amendments put together”,
and expressed the hope that,
“the Opposition and the Government will get together … and thrash out what would be the best of everything and get that into one list that could go into Third Reading”.—[Official Report, 28/10/14; col. 1092.]
That explains why we have retabled our amendment here at Third Reading. We felt that the House would want to hear what progress we have made in those discussions.
There were two issues of difference between us and the Government. I say “difference” rather than “disagreement”, as the whole approach on this matter has been consensual. Our intention in tabling amendments is to ensure that the legislation, and its application, is the best it can be. That is why we sought advice not just on policy but from leading practising lawyers in this area. I put on record my thanks and appreciation to Kirsty Brimelow from Doughty Street Chambers and the Bar Human Rights Committee and Zimran Samuel from 42 Bedford Row Chambers. Their considerable practical experience and expertise have been of enormous assistance in understanding all the implications of the proposed legislation. We are grateful to them also for attending the meeting we had with the Minister and her officials. I am also grateful to Catherine Meredith of Doughty Street and Dexter Dias of Garden Court Chambers. I am not a lawyer, but I felt that I needed to be absolutely clear on the implications of the amendments before us—not just how they would be implemented in theory but how much difference they would make in practice. There is old saying: in theory, theory and practice are the same, but in practice they are often different.
As legislators, we must be concerned about practice— the very point made by the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss— when debating the use of civil law. There are two issues of difference, both relating to the Female Genital Mutilation Act 2003. We welcomed the Government’s support for our calls for FGM protection orders and were grateful to them for bringing forward their own amendment on Report. The issues of difference that merited further consideration were highlighted by the Bar Human Rights Committee, whose members proposed such an order in the first place and are experts in this area.
The first issue relates to where the orders sit in relation to civil and criminal law, and which Act the amendment relates to. It might seem just an academic argument, but if that were that case, I would not raise it today in your Lordships’ House. The 2003 FGM Act, which the government amendment seeks to amend, is a criminal statute and not necessarily familiar to family law practitioners. The Family Law Act 1996, on the other hand, is their first port of call. Forced marriage protection orders, which are used all the time in the family court, are in the Family Law Act and have been successful. Having FGM orders also in the Family Law Act would mean that they would sit beside and complement the existing regime for the protection of children in the Children Act 1989.
I appreciate that the Government’s proposal remains a civil order, but it is a civil order within criminal legislation. Those who are involved in family courts told us of the practical reasons why not all family court lawyers would know, understand or appreciate that they should also look to criminal law statutes for civil measures.
There is the issue of the deterrent factor for those whom we want to come forward, when a civil measure lies within criminal law. The difference may be understood by criminal lawyers or across the Dispatch Box in your Lordships’ House, but it is not necessarily understood by those whom the orders seek to protect.
I totally understand that from the Government’s point of view it makes policy sense to have all the legislation relating to FGM in one place. It sounds logical. But when those who will use this law, and who really care that we get it right, tell us that it could make application for and gaining of an FGM order harder and therefore less likely, I feel obliged to take their views and experience into account. What matters is what works in practice.
The second issue is about the definition. As I explained in Committee, the government amendment uses the definition in the 2003 Act. The Government believe, as was the intention when we reintroduced the legislation in 2003, that this covers reinfibulation. I am not going to test your Lordships’ House again with an exact explanation of what is involved. Last time, “Today in Parliament” put out a warning before I spoke, and gave the programme a G certificate, standing for guidance. I think that is the first time that that has happened, but it does convey some of the brutality and horror of what we are talking about.
The law was intended to include reinfibulation. Any definition or interpretation should include reinfibulation, which involves unnecessary and non-medical restitching to reclose the female genital mutilation following childbirth. However, the Bar Human Rights Committee and Doughty Street lawyers tell us that there is some misinterpretation. That is why we use the World Health Organization definition instead. That would ensure that our law is consistent with recognised international standards and understandings and clarifies any existing confusion around offending conduct such as reinfibulation.
I was reassured on Report by the willingness of Ministers to discuss this further and, as a result, I agreed to withdraw our amendments. The lawyers who advised us attended the meeting with the noble Baroness and her officials. We were looking forward to the meeting, and we were optimistic that we would make the kind of progress that the noble and learned Baroness, Lady Butler-Sloss, and others, had wanted us to make. However, I have to tell your Lordships’ House that we are very disappointed with the outcome. It appeared to us in that meeting that the Government were not prepared to take on board any of the points raised by us or, more importantly, by the barristers who deal with this issue on a regular basis. On the issue of definition the Government are now concerned that such clarification as we have called for could affect any existing or current cases. I am surprised that that was not mentioned on Report. That assessment is questioned, including by senior lawyers who we have spoken to. Perhaps the noble Baroness and I could pursue that at another time.
No one is suggesting that the law is wrong; there is a problem with interpretation. When the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that the definition does not include reinfibulation, that seems to me to be an excellent case for clarification. Despite the clear will of your Lordships’ House that such discussions should take place with the intention of ensuring that whatever was brought forward works well in practice, I deeply regret that I do not consider that we had productive discussions. The Government clearly have no intention of making any modifications or improvements in this area.
I do not intend to press the amendment to a vote. The government amendments are not wrong, but they could be better. We believe that this is a lost opportunity, and I ask the following questions.
First, can the Minister tell us what the Government will do to raise awareness among practitioners and the public that these orders exist? Secondly, will she agree to report to Parliament on the number of orders that have been made after, for example, one year of operation —although that might of course be under a different Government—so that the effectiveness can be considered? Thirdly, will she clarify the legal aid position? My understanding is that legal aid will be made available because these are civil FGM orders, even though they sit within criminal legislation. Without such legal aid, these orders would fail. How does the Minister intend to make that clear, or is my understanding of legal aid wrong? Fourthly, will the Government consult on the interpretation of the definition of FGM?
While we are disappointed that we do not have the best outcome, we feel that we have done all we can to make the case. The proposals from the Government are important, they are a significant improvement and we want to see them be as effective as possible.
Baroness Meacher (CB)
I am most grateful to the Minister for tabling Amendment 7, which enables me to speak briefly about the need to create an offence of encouragement of female genital mutilation, which we discussed on Report. I want to thank the Government for agreeing to have further discussions about the new amendment, drafted by Dexter Dias QC, and about the new evidence from our QC adviser. To be frank, that evidence is extremely powerful and it is a pity that we did not have access to these arguments earlier in our debates. I hope the Government will table the Dias amendment, or something very like it, in the other place, but I understand that they are in no position to make any commitment of that kind at this stage.
I will not repeat the arguments we rehearsed on Report in favour of focusing attention upon those who encourage the practice of FGM rather more than upon the families who practice this appalling form of child torture. I want to put on record only that the Dias amendment would provide an effective legal intervention because it is modelled on what is known to work: comparable powers used to combat the dissemination of encouragement to commit acts of terrorism. FGM is of course an entirely different crime from terrorism but the model for the two types of crime is similar.
The Dias amendment recognises the awful social pressure that parents are placed under by some communities. In traditional societies, which are intensely hierarchically structured, elders and preachers exert enormous influence. I think that most of us are not familiar with that or have not experienced it. We believe that the encouragement amendment will complement the important community work being done to dissuade preachers from encouraging FGM.
Mr Dias QC refers to our international obligations, which more than justify the creation of an offence of encouragement of female genital mutilation to cover anyone who makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl. That is the essence of his amendment. These international obligations include: the Convention on the Elimination of All Forms of Discrimination against Women of 1979; the UN Convention on the Rights of the Child of 1989, under which the UK has positive obligations in international law to ensure that children are not subjected to cruel, inhuman or degrading treatment; and, finally, the UN Convention Against Torture of 1984, which has been ratified by the UK.
Mr Dias presents four pages of powerful arguments in support of the amendment he has drafted, which I hope very much that the Government will consider most seriously, as I have indicated. I will not repeat all these arguments here today—this is, after all, Third Reading—although I believe that your Lordships’ House would find them extremely persuasive. The only remaining point I want to make is that I am advised that our strong international obligations justify overriding Article 10 of the Convention on Human Rights, the right to freedom of expression. This is a very important point, particularly because we all wish to preserve that right whenever it is appropriate. All that we are saying is that in this very specific case, it is appropriate to override it.
Again, I give my thanks to the Minister for providing this opportunity for me to reiterate certain points. I hope that the Minister can confirm to the House today the Government’s agreement to have further discussions on this important issue.
Baroness Butler-Sloss
My Lords, had the noble Baroness, Lady Meacher, tabled this amendment I would have put my name to it. I do not want to take up time at Third Reading to repeat what the noble Baroness has said, but I ask the Minister to be in touch with those in the Home Office who will be dealing with the Bill in the other place, and not to disregard what she has said. It is really worth having a further look at this serious matter. There are communities which, as the noble Baroness, Lady Meacher, has said, are different from most of us and where there is a degree of not just influence but power among certain elements of those communities. That leads to this appalling FGM taking place on children in this country. I am also supportive of what the noble Baroness, Lady Smith, said. This is a good part of the Bill and the Government are to be congratulated on it. However, they could do better.
Serious Crime Bill [HL]
Baroness Meacher Excerpts(10 years, 8 months ago)
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Baroness Meacher
“Offence of encouraging or assisting with the promotion of the practice of female genital mutilation
(1) The Female Genital Mutilation Act 2003 is amended as follows.
(2) After section 2 (offence of assisting a girl to mutilate her own genitalia) insert—
“2A Offence of encouraging or assisting the promotion of the practice of female genital mutilation
A person is guilty of an offence of encouragement or promotion of female genital mutilation if he encouraged or assisted another or others to commit an offence knowing or believing that the other or others would commit that offence.”(3) In section 5 (penalties for offences) insert—
(a) after “under” insert “sections 2 and 3 of”,(b) at end insert—“(2) A person guilty of an offence under section 2A is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine or both;(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.””
Baroness Meacher (CB)
Following legal advice, I amended Amendment 45, and it has now become Amendment 45A. The aim of this amendment is to tackle FGM at its heart. I applaud Ministers, the noble Baroness, Lady Smith, and others for tabling amendments which seek to protect young girls from the threat of this terrible torture and to protect their identity. All these are important, although we know that to achieve a prosecution of families committing FGM is not straightforward, and even with all the improvements in the new amendments, I still believe that it will be difficult. I understand that FGM is increasingly happening to tiny children who cannot yet speak, which will make prosecution even more difficult until very much later on because of course the families are trying to avoid detection. Prevention will be very difficult to achieve through protection orders, for example, if this is happening very early on in a child’s life.
Amendment 45A creates an offence of encouragement or promotion of FGM if a person,
“encouraged or assisted another or others”—
that is very important—
“to commit an offence knowing or believing that the other or others would commit that offence”.
The amendment seeks to ensure that if a community or religious leader encourages the practice of FGM, whether to a congregation, a small group of parents or indeed an individual parent, they would be committing an offence and could be charged. We are seeking something very different from the amendments so far, which have focused very much on an individual child and their family, but that is not where the focus should be when the core of the problem is actually in the culture of certain communities. If we want to stamp out the practice, we have to change the culture and the religious preaching.
The Minister explained to me just before this debate that the Bill team believes that the amendment does not achieve what we believe that it will. However, I sought legal opinion from Keir Starmer and his colleague Catherine Meredith, and they came back to me over the weekend and assured me that the amendment is fine and will achieve what we want it to. Of course, this was very late on; although I approached them some time ago, they are busy people and did not come back to us until very late. We therefore have not had an opportunity for the Bill team and government lawyers to sort this out. Not surprisingly, we therefore have a slight disagreement, but I am satisfied on the basis of my legal advice that the amendment will achieve what we want it to achieve and I will therefore speak to it on that basis.
The amendment would make a distinction between religious leaders who preach from the Koran and are therefore authentic—and, indeed, religious leaders who preach from authentic Hadith—who would not be committing an offence and would not be prosecuted if the amendment became law, and religious leaders who preach on the basis of the inauthentic versions of the Hadith, who would be committing an offence; they would be very clearly differentiated from the others. That is very important.
My concern about the parent-focused offences in the absence of Amendment 45A is that if parents believe that their religion requires them to practise FGM, when parents are arrested for this practice and are subjected to a protection order, they will regard the arrest or the protection order as some terrible action of the infidels. They will not be convinced at all and their thinking will not change. In addition, parents who are not directly affected by an arrest will not be convinced. They will think that these are the actions of infidels and therefore they will try to find a way of carrying on with their FGM practice. That is the importance for me of Amendment 45A.
Baroness Tonge (Ind LD)
I have gone into this in great detail since 2003, when the all-party group that I chair held hearings on the subject. We learnt from various groups that gave evidence, and I have learnt since, that it is usually the grandmothers in a family who are most insistent on this practice, and that it is not confined to a particular religious group. I would hate for people to get the idea from what the noble Baroness is saying that this is a practice of the Muslim religion or any other religion. It is confined to small cultural groups. It is often opposed by the religious leaders and men in the community but the grannies insist that it is done.
Baroness Meacher
I am grateful to the noble Baroness for her intervention. I completely agree: this is not exclusively a Muslim problem. Indeed, there are Christians, apparently, who promote FGM. However, we know that there are religious leaders who preach from the unauthentic Hadith and are certainly promoting FGM; they are rather effective at doing that. They ally, of course, with the grandmothers, and the grandmothers can look to them for support.
Another question is whether this practice is sufficiently prevalent to justify this new offence. Yes, it is. The noble Baroness, Lady Smith, referred to international figures. I simply want to refer to a few from the British Arab Federation. It estimates that more than 100,000 women have undergone FGM in this country and that some 25,000 girls are at risk of having their lives destroyed in this way. The Local Government Association provides a figure of 144,000 girls born in England and Wales to mothers from FGM-practising countries between 1996 and 2010. We do not know how many of these mothers will have changed their minds about this practice, but the figures from the British Arab Federation are certainly alarming and we need to take them seriously.
We must applaud the British Arab Federation for making it its highest priority to work with all organisations to bring an end to this crime. The federation is clear that there is no evidence, as far as Islamic sources are concerned, requiring, justifying or condoning the practice of FGM. This, again, reiterates the point. This is not a problem of the whole of Islam—far from it—or, indeed, only Islam. It affects certain groups and certain leaders.
The descriptions of the way FGM is performed are utterly appalling. Just reading them was a painful experience for me. The noble Baroness, Lady Smith, went into this in great detail and I certainly do not want to repeat what she said. As I have already said, there is no mention in the Koran of FGM and no mention in the authentic Hadith of FGM, so there are perfectly proper Islamic texts that do not in any way encourage this activity. Indeed, Islamic law prohibits partial or complete removal of any bodily organ without proven medical need. Thus FGM is unlawful, as I understand it, according to Islamic law. It is important that, in proposing this amendment, we make this absolutely clear. In no way is this amendment an attack on Islam: quite the opposite. It is an attempt to secure the proper practice of Islam. There is a lot of work going on in communities to encourage them to abandon FGM, but this work is being hindered by these leaders who stick to unauthentic texts.
Currently, under Sections 44 to 46 of the Serious Crime Act 2007, anyone inciting or carrying out FGM in a particular case can be prosecuted for incitement. The LGA argues, quite rightly, that it is not possible under current law to prosecute someone who in general terms says that there are religious, health or other grounds for carrying out FGM. That is the whole point of this amendment and the whole point of referring to the plural: if somebody preaches to “another or others” that FGM is important to their religion, they are committing an offence. This amendment should make it much easier to bring cases against those who promote this practice. Inhibiting the preaching or promotion of this practice is much better than action ex post. That is what we are all working for: to try to prevent this thing ever happening in the first place. A lot of the focus has been on prosecuting people after they have practised FGM and that is just not good enough.
I know that the Government have concerns about whether this amendment really would achieve what we hope it would achieve, but I hope that we can have further discussions. I take the point that there will also be debates in the other place. Therefore, we do not even have to resolve these issues, and the issues around the previous amendments, before Third Reading, although I will certainly seek to do that with my legal advisers. I beg to move.
Baroness Williams of Trafford
Again, this has been a further excellent debate on the role of the criminal law in helping to put a stop to the practice of FGM in this country. I am grateful for the constructive approach that the noble Baroness, Lady Meacher, and others have adopted in both debates and in the discussions we have had outside and inside the Chamber.
As many noble Lords have said, we are aiming to get to the same end. It is slightly unfortunate that the amendment was tabled quite late and that there is a difference of opinion in terms of what the amendment seeks to achieve. My noble friend Lady Hamwee rightly pointed out, on the point about “other or others”, that the amendment does not seek to achieve what was sought in the original amendment, if that makes sense.
I also thank my noble friend Lady Tonge and the noble Baroness, Lady Meacher, for pointing out quite strongly that this is not a religious matter. There is nothing in any religious text that points to FGM being something that should be carried out on young girls. It is a specific cultural practice that exists in certain communities in the world and has found its way to this country. Legislation alone cannot eradicate a practice that is so deeply ingrained in the culture and traditions of those who practise it and have been doing so for centuries, but I agree that the law is a very important part of our response to the abhorrent practice of female genital mutilation, and it is right that we should change it where necessary.
We believe that the new offence that we have just debated of failing to protect a girl from risk of genital mutilation gets to the heart of the issue. The Government’s new offence focuses on those who allow this dreadful abuse to be perpetrated on their daughters rather than on those who may only encourage them to do so. That is not to suggest that encouraging female genital mutilation, or indeed any crime, is in any way acceptable.
I take the point made by the noble Baroness, Lady Hamwee, that such behaviour also constitutes an offence under the provisions of Part 2 of the Serious Crime Act 2007, which contains inchoate offences of: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. As the noble Baroness observed, the revised wording of the proposed new offence follows closely the wording of the existing inchoate offences. That is both its strength and, dare I say, its weakness. As a result, it would not cover behaviour that is not already covered by the existing 2007 Act offences.
We are not persuaded that creating a specific offence of encouraging FGM is necessary or appropriate. The provisions in Part 2 of the Serious Crime Act 2007 apply to all criminal offences precisely so that it is not necessary to create specific encouraging or assisting offences for every crime. We agree that the behaviours now referred to in the noble Baroness’s revised amendment should be criminalised, but that is already the case. This amendment would not advance the criminal law in this area—I suspect this is where we are going to have a further conversation.
We believe that changing the culture and attitudes that allow female genital mutilation to persist will be better achieved through the awareness raising and community engagement that the Government have already embarked upon, rather than through the creation of another, arguably unnecessary, inchoate offence.
I wholeheartedly commend the aims of the noble Baroness, Lady Meacher, and others in tabling her amendment. As I have said, this House is united in its desire to eradicate FGM, even though we may differ on how best to achieve that end. I hope the noble Baroness will agree that the government amendments that we have just debated represent a substantial package of measures to strengthen the civil and criminal law to tackle FGM. I firmly believe that they offer a better way forward, and on that basis I ask the noble Baroness not to press her amendment.
Baroness Meacher
I thank the Minister for her constructive response and all noble Lords who have spoken very constructively in this debate. I particularly thank my noble and learned friend Lady Butler-Sloss for her very important point that this amendment, unlike any other, would achieve deterrence, and that is what we want to do. We want to deter this dreadful act. We do not want just to prosecute after the event, although it is difficult ever to achieve a prosecution. If we can deter, we have really got to the goal that is now clearly shared across all sides of the House, which is to change the culture on FGM. We therefore need to change the way the leaders operate and the way they encourage people to indulge in this terrible act.
I also thank the noble Baroness, Lady Smith, for her very helpful support. We must try to find a form of words that the government lawyers, our lawyers and all other lawyers agree will achieve this incredibly important objective. On that basis, I beg leave to withdraw the amendment.
Serious Crime Bill [HL]
Baroness Meacher Excerpts(10 years, 11 months ago)
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Baroness Howarth of Breckland (CB)
My Lords, I shall speak very briefly as I hope that the Minister will take these amendments away and come back with a combination. I support the noble and learned Baroness, Lady Butler-Sloss, and her companions in their amendment, but I am absolutely with the noble Baroness, Lady Walmsley, and the noble Lord, Lord Ponsonby, in relation to the age of these children.
Some years ago the Social Research Unit at Dartington produced a compendium of all the research about emotional abuse in children. It showed that the development of children who had been emotionally abused was more severely impeded in the long term than the development of those who had been physically abused. This is different from sexual abuse, which is another thing. Children who had experienced physical abuse were more likely to be able to survive and grow through it than those who had been emotionally abused. Those children whose parents had never made a proper emotional contact with them were unlikely to make relationships later. So, in terms of mental health and the economics of the situation, looking after these children, and doing so until they are 18, makes really good sense.
Baroness Meacher (CB)
My Lords, I rise to make two small points on Amendment 40BZB, so ably introduced by my noble and learned friend Lady Butler-Sloss. First, I congratulate the Government on clarifying in Clause 62 that psychological effects on children have equal importance to physical effects. As my noble friend has just said, it is also my professional and personal experience that psychological damage to children is often more serious than physical injury—although, of course, it depends on the severity of both. This is an important step forward, albeit not an entirely new one. I know that the legislation has always alluded to psychological or psychological-type abuse. I strongly support Amendment 40BZB and hope very much that the Government will be able to support it, or something very like it. It seems to me that the clarification is altogether helpful.
I welcome proposed subsection (6)(b), which defines the term “wilfully”, and have no worries about it. Further elaboration will no doubt come in regulations. I should be grateful if the Minister would assure the Committee that in those regulations the Government will clarify that a parent with a drug addiction will be regarded as not having the competence to foresee that an act or omission regarding a child would be likely to result in harm, but nonetheless as unreasonably taking that risk. Clearly, if a drug-dependent parent is causing physical or psychological harm to a child, the matter must be dealt with. Again, I hope that regulations will be put in place to ensure that resources for the treatment of the addiction will be put in place and that the parent will be expected to make good use of them in order to avoid continuing damage to a child.
Baroness Meacher
“Offence of encouraging or assisting the promotion of the practice of female genital mutilation
(1) The Female Genital Mutilation Act 2003 is amended as follows.
(2) After section 2 (offence of assisting a girl to mutilate her own genitalia), insert—
“2A Offence of encouraging or assisting the promotion of the practice of female genital mutilation
A person is guilty of an offence if he encourages or assists in the promotion of the practice of female genital mutilation.”(3) In section 5 (penalties for offences)—
(a) after “under” insert “sections 2 and 3 of”,(b) at the end insert— “(2) A person guilty of an offence under section 2A is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine (or both),(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both).””
Baroness Meacher
The amendment is intended to ensure that anyone encouraging or assisting in the promotion of the practice of female genital mutilation will face an investigation and, if found guilty, a conviction. We propose that the penalty for those offences should be severe: a maximum prison sentence of up to seven years for a conviction on indictment.
Local councils have a role in tackling the issue as a result of their duties to safeguard children and they are well placed to work with the relevant communities in their area where FGM is practised in order to reduce the number of women and girls at risk of that mutilation. It is appalling to contemplate that 20,000 girls and women in this country are currently at risk of being subjected to FGM. Professionals and third-sector experts believe that the practice will be eradicated only through a change in custom and culture in the communities where it happens. We will not do it through individual charges.
We can be encouraged that there are many members of communities with a history of practising FGM who are now willing to make the case against it. However, we also know that there are community and faith leaders who promote and encourage the practice of FGM. This amendment would make it absolutely clear that authorities can, and indeed must, step in to prevent the community and faith leaders perpetuating this practice. The approach of these faith leaders is likely to be through generating pressure on families who might otherwise turn away from FGM for their daughters.
Currently, anyone inciting the carrying out of FGM can be prosecuted for incitement, regardless of whether the underlying substantive offence is committed or attempted, under Sections 44 to 46 of the Serious Crime Act 2007. I understand that the CPS believes that there is no need to create a new offence on the basis that legislation already exists to criminalise incitement. However, the purpose of this amendment is to clarify the law to make it clear that even indirect promotion of FGM by community and religious leaders could be dealt with under the law. It is not difficult to imagine how religious leaders might stop short of incitement but nevertheless through general persuasion and comments as leaders of these communities might indeed lead families to be fearful if they do not comply with the religious standards of their history.
It is relevant to note that the Local Government Association strongly believes that there is a case for this amendment and for bringing the offence of promoting or encouraging FGM into the 2003 Act so that it sits alongside the offence of practising FGM itself. This would help law enforcement officers and legal practitioners with no prior experience of FGM to locate the offence. It is no good if some offence is there if the key people are not aware of it. We know that the Modern Slavery Bill has the similar aim of consolidating and clarifying the relevant legislation. I think it is a very good example to follow.
I hope very much that the Government will agree that this is such an important and yet difficult area of law that our amendment is justified. I beg to move.
Baroness Butler-Sloss
My Lords, I had intended to put my name to this amendment, but I am afraid I was rather busy last week and did not in fact remember to do so. I strongly support the noble Baroness, Lady Meacher.
Perhaps noble Lords will permit me to tell a short story. Yesterday evening I was one of eight judges for the “Speak Out” competition for 15 year-olds across the whole of London and Essex. We had 15 brilliant 15 year-olds, and each had to speak between one and three minutes on the subject of their choice. One girl of 15 stood up and talked about female genital mutilation. It was an absolutely brilliant speech. Unfortunately, she did not win, but it was absolutely breathtaking that a 15 year-old could be telling us what we should be doing about it. She was utterly shocked that we were not effective in stopping this happening—this absolutely abhorrent crime, which is hitting so many young girls nowadays in this country because they are being taken to other countries, or even it is being done here.
Anything—absolutely anything—that can encourage the public who are part of this system, or who know about this system, to be reminded that it is a crime should be taken forward. Anyone who might be involved in this in any way, perhaps as a member of a family where one member may be considering taking the girl to Sudan or to South Sudan or wherever else it may be, should now say, “Just be very careful, as this is something that is not acceptable in this country, either for those living here or those coming in or out”.
I do hope that the Minister will see that this has all sorts of values. That is to say that it has the value of actually dealing with the offence of encouraging or assisting the promotion of this abhorrent practice and, secondly, it would send out a powerful message that those who are around those who do it are possibly in danger of criminal offences themselves. I really hope the Government will pick this one up.
Baroness Walmsley
My Lords, it would not be in order for me to say anything about the amendment moved by the noble Baroness, Lady Meacher, as I was not in my place when it was moved. I support the noble Lord, Lord Rosser, in his attempt to get anonymity for the victims of FGM, and I hope the Government will consider it. Indeed, I think there may be a case for going a little further than that, because it could be that there are women within communities who know what is happening who might be more encouraged to come forward and say so if it were guaranteed that they would have anonymity. It is something that needs looking at.
Baroness Meacher
The noble Lord, Lord Rosser, introduced his amendment extremely effectively and has said all that needs to be said, but I would hate the Minister to think that there was no support for it. Therefore, I simply say that we need these charges to be investigated and pursued, and if victims are not given anonymity, it seems an impossible task. I hope that the Minister will be able to support the amendment proposed by the noble Lord, Lord Rosser, as well as my amendment.
Baroness Butler-Sloss
I also support the amendment proposed by the noble Lord, Lord Rosser. I meant to say so earlier, but forgot.
Baroness Williams of Trafford
My Lords, I commend noble Lords who spoke to the amendments in this group, which show how seriously this House takes the practice of female genital mutilation. These amendments seek, in their different ways, to further our common objective of ending the abhorrent practice of female genital mutilation.
In moving Amendment 40BA, the noble Baroness, Lady Meacher, is, as she explained, seeking to give effect to a recommendation made by the Local Government Association. The association recommended that a specific offence of “inciting and condoning” the practice of female genital mutilation would make it easier to bring cases against those who advocate it, whether they reside in or are visiting the UK. As I hope Clause 64 demonstrates, the Government are open to identifying ways in which the law might be strengthened to help put an end to female genital mutilation and better to protect victims. We are already considering recommendations made by the Director of Public Prosecutions, one of which we will debate shortly, and we are looking carefully at the recent recommendations made by the Home Affairs Select Committee, to which the noble Lord referred. In this instance, however, I hope to persuade the noble Baroness that her proposed amendment is unnecessary as the behaviour that it seeks to criminalise is already covered and can more effectively be punished by existing provisions of the law.
The common-law offence of inciting the commission of another offence was abolished by Section 59 of the Serious Crime Act 2007 with effect from 1 October 2008, and replaced by the provisions in Part 2 of that Act, which I will refer to as the 2007 Act. They are as follows: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. To be convicted of encouraging or assisting an offence, it is not necessary for the anticipated principle offence to take place. In addition to these legislative provisions, if an FGM offence is actually carried out then anyone who aided, abetted, counselled or procured the offence would be liable as an accessory.
We believe that the existing law is sufficient to cover those who encourage or assist the practice of female genital mutilation and those who take part in an offence in a secondary way, whatever their reason for doing so. The offences in Part 2 of the 2007 Act also have extraterritorial application: they can cover those who encourage or assist, wholly or partly from this country, offences of female genital mutilation that they know or believe will be committed abroad.
Baroness Meacher
I am sorry to interrupt the Minister but I wonder whether I have understood this correctly. My understanding is that the current law talks about aiding a particular offence of FGM. What we are concerned about is the general promotion by community leaders and faith leaders of this practice. I am not sure whether this is the case, but my feeling is that perhaps the current law does not fully and effectively cover that point.
Baroness Williams of Trafford
I think I will get on to that further on. As the noble Baroness said, we need to go beyond the law and think about other aspects of how we stop this happening in our communities. I hope I will answer her question, but if I do not I am sure she will stand up again.
This possibly comes on to it: a person convicted of encouraging, assisting, aiding or abetting an offence is liable to any penalty for which he would be liable on conviction of the principle offence. So a person convicted of encouraging, assisting, aiding or abetting an offence of female genital mutilation would be liable, on conviction on indictment, to imprisonment for up to 14 years. Amendment 40BA, which provides a maximum penalty of seven years’ imprisonment for encouraging or assisting the promotion of the practice of female genital mutilation, would therefore have the effect of reducing by half the maximum penalty currently available for such behaviour.
The noble Baroness is, of course, right that the long-term and systematic eradication of FGM in the UK will require practising communities to abandon the practice themselves. While the criminal law can play a part in this, the recent Home Affairs Select Committee report quite properly also pointed to the need for more effective engagement with communities to persuade them to abandon the practice. To this end, the Government are spending £100,000 on the FGM community engagement initiative. Charities were invited to bid for up to £10,000 to carry out community work to raise awareness of FGM among women who have already been affected by FGM and young girls at risk, as well as men. We are now funding 12 organisations to deliver community engagement activity, and we will continue to work with civil society organisations to examine how we can support and facilitate their engagement with communities in the UK. It is noteworthy that in its report the Home Affairs Select Committee made no recommendation in favour of a new offence of promoting or encouraging FGM.
I now turn to Amendment 40CA. As the noble Lord, Lord Rosser, has explained, this amendment would extend to the victims of FGM the same anonymity that already applies to the alleged victims of many sexual offences.
Baroness Meacher
Well, the Minister did say that I could stand up again if she did not answer my point. I was listening very carefully to her words, and they still related to a specific offence of FGM, whereas this amendment is about its general promotion—for example, in a faith leader’s sermon—which is a different thing. I only ask the Minister if she could take this back and consider it. I have said enough, and I do not want to interfere with her answer to noble Lords.
Baroness Williams of Trafford
I shall certainly go back and think about what the noble Baroness has said. There is no provision in law for condoning something, and that is what she is suggesting. Perhaps I could clarify it with her further. I apologise if I have not quite answered her question.
Can we now move on to Amendment 40CA from the noble Lord, Lord Rosser? He talked about the same anonymity being applied to victims of FGM that already applies to victims of other sexual offences. This follows a recommendation by the Director of Public Prosecutions. FGM is an offence of a particularly personal and sensitive nature, and the DPP believes that it is important that its victims should know that their identity will be protected if a prosecution takes place. The DPP has argued: that this protection needs to be guaranteed, rather than discretionary; that it should apply from the outset, when an allegation is first made, rather than from the point of charge; and that it should last indefinitely. The director believes that such anonymity would go far to encourage the further reporting of this offence.
These are powerful arguments, and we are considering them carefully. In doing so, we will also take account of the fact that, in its recent report on FGM, the Home Affairs Select Committee endorsed the DPP’s proposal. There are some questions that we need to resolve, but I assure your Lordships that the Government see the force of the argument, and I am confident that they shall shortly be in a position to announce their conclusions.
Going back to the noble Baroness, Lady Meacher, I have just been given an additional note. I will read it out: “Where the general encouragement of FGM related to a specific act, constituting an offence would depend on the circumstances of the case, but we believe such conduct could be covered”. If that still does not answer her question I am happy to write to her. But on the basis of everything I have said, and in the knowledge that we can and should return to this issue on Report, I hope that the noble Lord, Lord Rosser, and the noble Baroness, Lady Meacher, will be content at this stage not to press their amendments.
Baroness Meacher
I thank the Minister for her careful response. I hope that the Minister will agree with me that she has not really answered the point. I am grateful, therefore, that she will take this back, and hope that we can perhaps have discussions with Ministers and officials to sort it out. On that basis I withdraw my amendment.
Serious Crime Bill [HL]
Baroness Meacher Excerpts(11 years ago)
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Baroness Meacher
“Dissuasion Panels to prevent gang-related violence and drug-dealing activity
(1) A police officer may refer a person aged 14 or over to a Dissuasion Panel under this section if the following two conditions are met.
(2) The first condition is that the officer is satisfied on the balance of probabilities that the person has engaged in or has encouraged or assisted—
(a) gang-related violence; or(b) gang-related drug-dealing activity.(3) The second condition is that the officer thinks it is necessary to make the referral for any of the following purposes—
(a) to prevent the person from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity;(b) to protect the person from gang-related violence or gang-related drug-dealing activity;(c) to determine whether the person is drug dependent and may benefit from drug treatment.(4) A Dissuasion Panel must be comprised of at least three people from the following backgrounds, with preference given to professionals with prior knowledge of the individual—
(a) medical, including mental health;(b) social work;(c) legal;(d) any other profession that the court believes will be useful and as it directs.(5) The Dissuasion Panel will—
(a) assess the individual’s personal circumstances,(b) consider whether these have impacted on the activities at subsection (2), and(c) determine whether interventions are needed to—(i) prevent the person from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity;(ii) protect the person from gang-related violence or gang-related drug-dealing activity;(iii) address drug dependency.(6) Following assessment of a person by a Dissuasion Panel under this section, the Panel may—
(a) make no further intervention; or(b) require the respondent to do something which they reasonably believe will—(i) prevent the person from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity;(ii) protect the person from gang-related violence or gang-related drug-dealing activity;(iii) address drug dependency.(7) Requirements may include, but are not limited to—
(a) treatment for those who are drug dependent;(b) counselling;(c) education;(d) training;(e) reporting to the Panel for review.(8) If the person does not agree to the proposed requirements they will be referred to court for alternative action under section 34 of the Policing and Crime Act 2009, as introduced by section 47 of the Serious Crime Act 2014.
(9) At any review by the Dissuasion Panel, the Panel may—
(a) permit the contract to continue with its current terms;(b) vary the contract by—(i) adding a requirement; (ii) removing an existing requirement;(iii) amending an existing requirement;(c) cancel the contract and refer the person to court for alternative action under section 34 of the Policing and Crime Act 2009, as introduced by section 47 of the Serious Crime Act 2014.(10) If the person breaches the contract, he or she will initially be referred back to the Dissuasion Panel who may—
(a) permit the contract to continue with its current terms;(b) vary the contract by—(i) adding a requirement;(ii) remove an existing requirement;(iii) amending an existing requirement;(c) cancel the contract and refer the individual to court for alternative action under section 34 of the Policing and Crime Act 2009 as introduced by section 47 of the Serious Crime Act 2014.(11) For the purposes of this section, something is “gang-related” if it occurs in the course of, or is otherwise related to, the activities of a group that—
(a) consists of at least three people, and(b) has one or more characteristics that enable its members to be identified by others as a group.(12) In this section “violence” includes a threat of violence.
(13) In this Part “drug-dealing activity” means the unlawful production, supply, importation or exportation of a controlled drug.
(14) “Production”, “supply” and “controlled drug” have the meanings given by section 37(1) of the Misuse of Drugs Act 1971.”
Baroness Meacher (CB)
My Lords, I rise to move Amendment 32 and to speak also to Amendments 33 to 39, all of which are probing amendments. I emphasise that we are presenting quite a detailed proposition. The new clause was drafted by a lawyer from Release at my request. Neither she nor I claim that every word will be approved by government lawyers. We ask for your Lordships’ indulgence on that. I am grateful to the Minister for the meeting we had yesterday to discuss these amendments. It was extremely helpful.
I shall deal quickly with Amendments 33 to 39. They are substantially consequential on the new clause and I do not want to take the time of the House to discuss them in any detail. The exception is Amendment 34, which replaces the lower standard of proof with “beyond reasonable doubt” as the basis for injunctions. Any order of a court which could involve penalties should, in our view, be based on the criminal standard of proof. We are simply asserting that and I shall not debate it. Amendments 38 and 39 also relate specifically to injunctions and ensure that the requirements or prohibitions spelled out in an injunction relate specifically, in Amendment 38, to,
“engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity”
and in Amendment 39, to
“protect the respondent from gang-related violence or gang-related drug-dealing activity”.
I shall be interested in what the Minister has to say about those amendments, but I shall focus my remarks more generally on Clause 47 and specifically on the new clause.
We understand the objective of Clause 47 and are not arguing against the granting of injunctions in a number of situations envisaged by the Government. Our concern is that the injunctions referred to in Clause 47 and in the Policing and Crime Act 2009 require the young person to go to court where the injunction may be issued. We discussed this issue yesterday with the noble Lord. The involvement of the court in our view is an extremely costly and in many cases unnecessary process. It is also a process which criminalises the young person and makes it harder for them to return to normal life and earn a living.
We understand that an injunction may place a range of prohibitions and requirements on the young person, including the requirement to participate in rehabilitative activities. We realise that they are not just blunt instruments. We welcome the requirement in the statutory guidance on the implementation of gang injunctions of 2011 that the body proposing to apply for the injunction must consult the youth offending team and may also consult schools, probation and other bodies. Local authorities also have an obligation under the National Health Service and Community Care Act 1990. If a young person may be suffering from drug, alcohol or mental health problems, local authorities must have regard to that.
Lord Taylor of Holbeach
My Lords, I am grateful to the noble Baroness, Lady Meacher, for explaining her thinking behind these amendments, and to noble Lords for taking part in this interesting debate. I am also grateful to the noble Baroness, Lady Meacher, for coming to see me yesterday, when we had a good discussion, so that I could understand what she wanted to achieve through her amendments on tackling drug dependency. I know that she takes a strong interest in this issue. We have often discussed drugs policy in this Chamber while wearing other hats. I recognise that her intention is to place a stronger focus on addressing drug dependency and on meeting the needs of vulnerable individuals who may become involved in gang-related violence and drug dealing. Therefore, I welcome this opportunity to discuss these issues.
However, as my noble friend Lord Elton indicated, gang injunctions are a much wider issue than that of just drug abuse. Drug abuse can be an element of gang activity but gang injunctions go much further than drug abuse alone. I hope that I can help noble Lords by talking about what the Government are doing to tackle drug-related offending and reoffending. The Government strongly support local investment in integrated offender management approaches, including identifying drug-using offenders and directing them to treatment. This is going on now. The Government are also: piloting drug recovery wings, focused on abstinence and connecting offenders with community drug recovery services on release; increasing the number of drug-free environments and piloting payment by results for drug and alcohol recovery services; testing a new “through the gate” model for substance misuse services to complement the introduction of transforming rehabilitation proposals; and developing and testing liaison and diversion services in police custody suites and at courts. I mention these initiatives because I do not want it to be assumed that no effort is being made at a local level to try to make drug users’ lives better. A great deal of effort is being expended in this area.
The expansion of activities covered by gang injunctions is not a substitute for seeking the prosecution of someone for a serious crime such as drug dealing. However, there are instances where a gang injunction may help prevent respondents engaging in gang-related drug activity or protect people being further drawn into such activity, which is particularly important for children, girls and young women.
Amendment 32 introduces the concept of dissuasion panels with the purpose of assessing the personal circumstances that could have led a person to engage in gang-related violence or gang-related drug-dealing activity. The panels would be composed of persons from a medical, legal or social work background. The amendment also confers powers on these new panels to impose requirements on an individual to prevent them engaging in the gang-related violence or gang-related drug-dealing activity, to protect the individual from such violence or activity, and to address drug dependency.
Although referrals to a dissuasion panel appear to be discretionary, the tenor of the proposed new clause seems to be to prevent an application for a gang injunction being considered by a court until the case has been referred to the dissuasion panel—I think I heard the noble Baroness aright in that regard—and the person concerned declines to abide by any requirements imposed by the panel. The result of the proposed new clause would be the introduction of a two-stage process. While I have considerable sympathy for the outcome the noble Baroness is seeking to achieve, I believe that interjecting a dissuasion panel into the process applying to a gang injunction is unnecessary.
Baroness Meacher
I should make it clear that the amendment proposes that only if a police officer identifies drugs as a problem for the individual concerned will they be referred to the dissuasion panel. If they have engaged in violence and there is no indication of drugs being involved, then, of course, they will go straight through to the court.
Lord Taylor of Holbeach
I am grateful to the noble Baroness for that explanation but I do not think that it totally weakens the argument I am trying to make for adopting a holistic approach to gang activity, which is contained in the gang injunctions. An individual’s personal circumstances leading to his or her involvement in gangs are already part and parcel of the matters taken into account as part of the gang injunction process. The Policing and Crime Act 2009 includes a consultation requirement. This requires the applicant to consult any local authority, chief police officer and other body or individual that the applicant thinks it is appropriate to consult. The Government’s statutory guidance on gang injunctions—we are considering gang injunctions in the Bill—published in 2010, stresses this point and suggests that the consultation process may include voluntary or support services working with the respondent and/or their family as well as the respondent’s school or housing provider, among others.
I agree that it is essential to take into account mental health or substance misuse issues, as these can be very relevant to someone’s involvement in gangs, together with any other personal circumstances, and this is already the case as part of the application process for a gang injunction. I also agree that it is important to stress this point further. However, I believe that the best place would be in guidance rather than introducing an additional statutory layer to the process. The guidance on gang injunctions is currently being revised and will be reissued in the autumn, as I explained to the noble Baroness yesterday. The revised version will make clear that the consultation process should include medical practitioners where appropriate and any other relevant professional who may assist in determining the individual circumstances of the case, and in particular whether substance misuse or mental health issues are factors that need to be taken into account.
New subsection (7) of the proposed new clause stresses further the point that requirements to prevent or protect a person from gang-related violence or drug dealing may include treatment for drug dependency, counselling, education or training. Gang injunctions are intended to help respondents leave the gang and may already include positive requirements such as the ones highlighted in Amendment 32 that work towards this end. The statutory guidance encourages applicants to be creative about helping respondents to leave the gang and specifically suggests that anger management sessions, coaching, counselling or other behavioural sessions may be appropriate. The revised guidance will stress further the positive requirement element of the gang injunction as a way of helping break away from gang-related violence, which is one of the elements we are seeking to address, and/or drug dealing.
Lord Taylor of Holbeach
I am not in the position to provide the figures that my noble friend asked for, but certainly when we study the Portuguese system and documentation I will make sure that I write to the noble Lord—and indeed to all noble Lords who have spoken in this debate. It will be useful to share that information.
My noble friend is absolutely right. There are all sorts of reasons why people belong to gangs. Fear is one of them. I have made two visits now to Brixton to see how territory, people and circumstance combine to encourage the existence of gangs. We need to be proactive in the way in which we deal with this problem. It causes abject misery through drug dependency; it causes crime through theft; it causes violence; and it causes unnecessary loss of life, as much of the violence can result in fatalities. All of that needs to be addressed in any policy that deals with gangs.
That is why we need a process. In my view, gang injunction lies at the heart of that process. I would be reluctant to dilute that but it can be informed by processes that can be imported from elsewhere. I hope that I have given some idea of my thinking about the issue and I hope that the noble Baroness, as I have said already, will withdraw her amendment.
Baroness Meacher
I thank the Minister for his very considered reply, and also give a special thank you to the noble Lord, Lord Elton, for his thoughtful intervention. I assure him that one of the key points in the Portuguese system is indeed the monitoring of the observance of the contract by the individual.
Baroness Meacher
Indeed: mentoring. The idea in this system is that the referral to, for example, treatment ensures that the person is then mentored in the environment to which they are referred, whether it is residential or day-based or a number of different things. The idea is a comprehensive package for the individual, monitored—not mentored—by the dissuasion commission panel to make sure that the person really does receive all the elements that they have signed up to in their contract. As I said, it is not a soft option but it is an effective one. That is what we are seeking to at least discuss here. I am truly grateful to the noble Lord, Lord Elton, to my noble friend Lord Howarth for a very considered and important contribution, and to the noble Baronesses, Lady Smith and Lady Hamwee. This has been a helpful debate.
I need to mention in response to the noble Baroness, Lady Smith, that Britain still has one of the highest levels of drug addiction and problems in Europe. We are in the top three countries. The tougher the policies, the worse a country tends to do. That is just a basic rule across many countries and is well understood in the field.
I am very grateful indeed to the Minister for agreeing that the department will look at—and, I hope, undertake a cost-benefit analysis of—dissuasion panels as an option for dealing with people with drug dependence problems. That is the point: it is cost effective and it is worth it. It produces results and it is cheaper. Rather than seeing it as a sort of two-tier system, one should think of it as dissuasion panels taking an awful lot of work away from the courts and dealing with that work more effectively: that is perhaps a better mental set in relation to this problem. With my many thanks to all those who have been involved, we will undoubtedly come back to this and, I hope, have further discussions with the Minister. On that basis, I beg leave to withdraw the amendment.
Baroness Meacher
I regret that the Minister referred to the speech of the noble Lord, Lord Howarth, as incoherent—or words to that effect. It seemed to me that the noble Lord’s arguments were incredibly powerful with regard to the lack of appropriate skills and training of the people in the courts, and the Howard League case he referred to. Obviously, as I said in my own speech, matters are made a great deal worse by cutting somebody off from their support systems and so on. I have to say that many of the comments made by the noble Lord, Lord Howarth, support strongly the case for having a professional tribunal or dissuasion panel to look at these cases, rather than leaving it to the courts, which do not appear to have the skills needed in these very difficult situations. I absolutely agree with the Minister that these are difficult problems; they have to be dealt with, but they have to be dealt with professionally, and I think that is the point the noble Lord, Lord Howarth, was trying to make.
Baroness Smith of Basildon
I had intended to speak in this debate. The noble Lord was uncharacteristically quick off his feet to respond to my noble friend. This clause requires some clarification and I am sorry that he seems quite upset about the probing questions that have been asked. I will listen to what he has to say. If the issues I intended to ask him about are not addressed, I will come back to him at the end of his comments, but there are some points of clarification that would be helpful in this debate.
Serious Crime Bill [HL]
Baroness Meacher Excerpts(11 years ago)
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Baroness Meacher (CB)
My Lords, I applaud some aspects of the Serious Crime Bill and raise some questions in relation to others. It gives me great pleasure to follow the powerful and challenging contribution of the noble Lord, Lord Howarth.
First, the positives. As I said in my short contribution to the Queen’s Speech debate, I welcome Part 5 of the Bill, particularly, along with other noble Lords, the explicit reference in Clause 62 to amendments to the Children and Young Persons Act 1933 to define cruelty to children as including both physical and psychological injury. As my noble and learned friend Lord Brown mentioned, there have already been indications of that, but I think it is important and overdue that it is absolutely clear. Anyone who has worked closely with child abuse knows that emotional cruelty by either parent, and sometimes tragically by both, can cause long-term damage to the child at least as great as any physical abuse. Having said that, an already severely traumatised child will be damaged further by the process of criminal proceedings against either parent, particularly in view of the inordinate time that such proceedings very often take. A criminal charge against either parent must surely be a very last resort. That is the essence of what I am trying to say, and I am sure that the Minister is well aware of this point.
I hope that clear recognition in law of the offence of emotional cruelty to a child will focus more attention on that possibility and ensure that appropriate interventions are put in place to rescue the situation. I have certainly been aware of cases where all the focus is on any possible physical abuse, ignoring the far greater issue of psychological abuse that is staring people in the face. That is why I strongly support what the Government are trying to do, despite the real risks of criminalising parents.
Very often, emotional abuse may result from a parent’s mental health and addiction problems. A criminal sanction in such circumstances is clearly wrong. I would never condone such a response. The parent or parents need skilled and appropriate addiction or mental health treatment and perhaps also support in developing parenting skills following a diagnosis of the problem. I hope that we can discuss with the Minister what steps the Government are taking to ensure that the right interventions are provided to avoid the need for costly and damaging criminal proceedings wherever possible, and certainly whenever a parent is unwell.
Another issue is the 16 year-old cut-off point in defining children in this context. As any parent knows, 16 and 17 year-olds can be very vulnerable, particularly when abuse is likely to have occurred over a long period, albeit that it may have come to light only when the child reaches maybe 16 or 17. It seems wrong for protection to be denied to young people at that age. The consequences of emotional neglect are likely to come out just then in the form of depression, self-harm or suicide. What are we doing by giving that cut-off point?
A final point on Clause 62, which I am sure we will raise in Committee, is whether, as the noble Baroness, Lady Smith of Basildon, highlighted, the term “wilful neglect” is correct or too narrow. This point was raised by the Children’s Society and I support it, at least as a matter for debate.
On Clause 64, at this stage I only want to welcome the broadening of the scope of the Bill from permanent UK residents to include those who are living in this country but who may not have permanent resident status. Others have spoken at greater length on that point.
I now turn to Clause 47 concerning injunctions to prevent gang-related violence and drug-dealing activities. The principle of preventing activities can only, of course, be a good thing. However, I have serious reservations about the approach set out in the clause. The NGO release makes the point that injunctions as envisaged may not satisfy the basic requirement of reasonableness. This is particularly the case if they were to be applied to problem drug users.
Under Clause 47, a court may grant an injunction against a child of only 14 years, or just over that, if for example it is satisfied on the balance of probabilities that the child has been engaged in or has assisted gang-related drug-dealing activity. A gang, as I think the noble Baroness, Lady Hamwee, mentioned, can comprise just three people. Let us suppose that a 14 year-old has become a problem drug user, and in order to afford the drugs he needs to feed his dependency he and a couple of friends, also drug dependants, agree to sell some cannabis to their school mates on behalf of a thoroughly undesirable gang in the neighbourhood. Clearly the situation needs to be dealt with firmly—I do not doubt that—but an injunction will simply not work unless it is backed up by a treatment programme.
What do the Government plan to do to ensure that an injunction is not issued unless the child or young person is at the same time referred for appropriate treatment? I think that at this point the Minister would expect me to refer to the Portuguese model, and I shall not disappoint him. The Portuguese have had a system in place for 13 years that deals firmly but sensibly with problem drug users and which has produced some good results: far higher numbers of people—young people, in particular—are receiving treatment; drug users are representing a very much smaller percentage of the prison population; and most important of all, in a way, the number of teenage problem drug users has fallen under that regime. Social use may not have fallen—it is roughly in line with that in neighbouring countries—but surely the important thing is problem drug users: we do not want them in our country.
These are the sorts of results that I think that our country would celebrate if only we could achieve them, so a constructive way forward would be to link injunctions to an aspect of the Portuguese model. Would it not be wise for a young person suspected of gang-related drug-dealing activity, as it is referred to in the Bill, to be referred to a drugs commission? Again, if we followed the Portuguese model, the commission would comprise three people—a psychiatrist, a social worker and a lawyer—to determine whether the young person was a problem drug user and, if so, to refer that person for treatment.
The system in Portugal is not a soft one. If a person does not comply with the treatment and is simply a problem drug user, they will receive an administrative penalty, but if they are dealing they will at that point find themselves drawn into the criminal justice system. The important point here is that treatment comes first, and I hope for some assurance from the Minister that that will also apply in this country. The Clause 47 injunctions could be applied to anyone suspected of gang-related or other drug-dealing activity who is deemed by the commission not to be a problem drug user. In other words, if they are playing around with drugs and find themselves drawn into a gang, then indeed a clear injunction might be very helpful.
I shall refer only briefly to Part 4. I simply want to ask the Minister how the Government will prevent the new powers to seize, detain and destroy drug-cutting agents from impacting on genuine businesses that use the same substances for medical products for human or veterinary use. No doubt we will return to this in much more detail in Committee, but that is all I want to say today.
In conclusion, the Bill has valuable sections, but we could radically improve it through our discussions with Ministers and through amendments in the coming weeks, as various noble Lords—and, I hope, I—have indicated.
Lord Taylor of Holbeach
My Lords, this has been a good debate. Even though the Bill itself has been widely welcomed and there has been general agreement about its purposes, noble Lords have raised matters which we will be required to resolve and deal with in Committee. In handling this Second Reading debate, I will do my best to answer as many of the questions as I can. We have strayed a little; I am thinking in particular of my noble friend Lord Blencathra’s contribution regarding his communications data Bill, while the noble and learned Lord, Lord Brown of Eaton-under-Heywood, gave my noble friend Lord Faulks some indication that he might be troublesome on the Criminal Justice and Courts Bill that is to come. In the mean time, we can all agree that the serious and organised crime which this Bill is designed to address is a significant threat. We must equip the National Crime Agency, the police and others with the necessary powers to counter that threat.
We can also agree that we need a robust body of law to protect children from harm. Passing new laws will not, of itself, change anything on the ground. The noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Rosser, emphasised that, as did many other noble Lords. As we move from clause to clause, noble Lords will want to test whether the provisions of this Bill provide for adequate enforcement, as well as for the legislative changes that we are proposing.
A number of noble Lords have properly and helpfully used this debate to set out some of these issues. It is striking that many contributions have related to Part 5, concerning child cruelty and female genital mutilation, but it is not surprising given that so many Members of your Lordships’ House are committed to enhancing the protection and life chances of children. In responding to some of the specific points raised, I will start with these provisions. I thank my noble friend Lady Brinton for her contribution; she is very keen that we scrutinise these aspects. The noble Lord, Lord Elystan-Morgan, suggested that we should brush away the Victorian cobwebs which surround this area.
The Government accept that the current offence of child cruelty in Section 1 of the Children and Young Persons Act 1933 is still effective and that the courts are able to interpret it appropriately. We acknowledge that some of the language is outdated and that the law may be easier to understand if it is updated and clarified. That is a reasonable approach to take. It is why we are amending the 1933 Act to make it absolutely clear that children subject to cruelty likely to cause psychological suffering or injury are to be protected by law. My noble friend Lady Hamwee and the noble Baroness, Lady Meacher, questioned why the offence applies not to 18 year-olds but only to those up to the age of 16. We recognise that there are circumstances in which people of 16 and 17 require protection. Young people over 16 are lawfully able to be married and are generally deemed capable of living independently of their parents. They could themselves be parents or carers of a person under 16. Those under the age of 16 are generally more vulnerable and more dependent on those who care for them. That is why Section 1 focuses on protecting those under 16, though it is not to deny the vulnerability of those who are older than that.
With regard to Clause 62, the noble Baroness, Lady Meacher, asked that for child cruelty offences prosecution should be the last resort. I agree totally with that view; prosecution is a last resort, and in cases regarding children Section 1 of the 1933 Act is really only one part of a comprehensive legislative framework for protecting children. The role of social workers and partners in caring for young children is to protect the child and to support the parents to do just that. Our proposed changes to Section 1 of the 1933 Act will not change that responsibility.
Baroness Meacher
My comments on this area did not really have to do with whether the legislation was adequate; rather, they were to suggest that we need to discuss what sort of support will actually be available for these children and their parents, particularly because—this is a slightly political point—there are massive cuts to local authority services and a risk that services will not be available along the lines that I was suggesting. If you find a parent emotionally abusing a child and causing severe psychological damage, there may be nothing between no intervention and some sort of criminal sanction. My point was about trying to look at whether guidance or something needs to be in place to ensure that the criminal route really is the last resort. I think that the Minister will understand what I am trying to get at.
Lord Taylor of Holbeach
I understand exactly what the noble Baroness is saying. All I will say is that at every point at which I have been taking Home Office legislation through the House, these sorts of points have been made. I hope that I have been able to emphasise that it is exactly the points that the noble Baroness has been making that are uppermost. We are urging local authorities and those with responsibility for the welfare of children to have a high regard for their role in preventing abuse, and indeed for detecting it. As someone mentioned earlier—I think it was my noble friend Lady Hamwee—it is schools and a whole series of individuals with responsibility for the welfare of children, in terms of their general activity of support, that are important to make success of legislation such as we are bringing through. It puts legislation in context to see it being a supporting pillar of a caring society, does it not? That is what we are seeking to do with this legislation.
That applies to FGM as well, on which we have had some really good contributions. In welcoming the measure, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said that more should be done to tackle this issue. Of course successful prosecutions are the key to stamping out FGM, and the DPP has announced the first prosecutions while the CPS is also considering 11 other cases. However, we agree that legislation cannot in itself eradicate FGM; it is important that we change the law where necessary, but there are other pressures that we can bring to bear. I note the robust comments by my noble friend Lord Blencathra in this regard and indeed the suggestion of my noble friend Lord Elton, both of which I think are worthy of our consideration when we come to the clauses in Committee.
The noble and learned Lord, Lord Hope, asked why the new offence of the possession of paedophile manuals does not extend to Scotland. This provision does not relate to reserved matters and, as such, under the Sewel convention, we would legislate here at Westminster only with the consent of the Scottish Parliament. We have discussed the provision with the Scottish Government and they have indicated that they will monitor the new offence and then take a view on whether to bring forward a similar offence in the Scottish Parliament. If, however, they change their mind before the passage of this Bill is complete then I am sure this House, and indeed Parliament in general, would consider such a request favourably as part of the legislative process.
Parts 1 and 4 of the Bill, as I have indicated, ensure that the National Crime Agency and others have the powers that they need to pursue relentlessly, to disrupt and to bring to justice those who commit serious and organised crime. We heard an excellent speech from my noble friend Lord Paddick, who informed our debate by drawing on his experience of policing. He and other noble Lords, including the noble Baroness, Lady Smith of Basildon, and my noble friends Lord Bourne and Lord Blencathra, pointed to the importance of ensuring that confiscation orders made under the Proceeds of Crime Act are robustly enforced. Serving time in prison does not excuse the liability to compensation. People who have not paid their compensation orders are still liable for them and will still be pursued because, as was said during the debate, the whole point of the exercise must be to deprive criminals of their ill-gotten gains. That is the fundamental point of these measures. The measures in Part 1 of the Bill, which I set out, will assist in that regard.
Let me deal with some of the particular points made. The noble Baroness, Lady Smith, said that more needs to be done to strengthen default sentences. The Bill includes significant increases in the length of default sentences where an offender fails to pay higher-value confiscation orders. As a result, an offender who defaults on a confiscation order of more than £10 million will in future serve up to 14 years in prison rather than five years as now. The noble Baroness asked whether that was the right figure. We will no doubt be monitoring closely the impact of these changes, and provisions in the Bill enable us to make further changes to the default sentencing framework through secondary legislation. My noble friend Lord Blencathra referred to Clause 36, which relates to the making of confiscation orders in magistrates’ courts, for example. We agreed that the existing £10,000 threshold may be too low, which is why we have included an order-making power in the Bill to increase this figure through secondary legislation. I trust that that will be welcomed by my noble friend and I expect that we will be debating these issues in Committee.
The noble Baroness, Lady Smith, asked whether enough groundwork was being done to ensure that the Northern Ireland Assembly agreed the necessary legislative consent Motion. I understand her interest in making sure that that is the case. We have worked very closely with the Minister of Justice, David Ford, on the development of this Bill in general. The provisions in Chapter 3 of Part 1 have been included at his request and he has agreed, in principle, to pursue a legislative consent Motion for them. It is now a matter for David Ford to take forward, but we are ready to assist him in any way that he would consider helpful.
The noble Lord, Lord Harris, asked about the distributing of moneys under POCA. One of the key incentives of our criminal finances improvement plan, which is overseen by the Criminal Finances Board, is to ensure that the asset recovery incentivisation scheme works effectively. To this end, we intend to review the scheme later this year to ensure that it works to support front-line agencies in the way that he has suggested.
A number of noble Lords mentioned the participation offence; I expect that we will be returning to this in Committee. This new offence is designed to capture anyone who takes part in the criminal activities of an organised crime group. It is not just about corrupt lawyers and accountants; it is about anyone who is involved in criminal activities. Taking part in such activities will in future be a criminal offence rather than just an issue of professional misconduct. For the regulated sector, which would include lawyers and accountants, failing to report someone else who is known or suspected to be involved in money-laundering is a criminal offence, but that is not the same as an individual themselves taking part in the activities of the crime group. We will shortly be meeting with the Law Society and the Institute of Chartered Accountants in England and Wales to discuss their concerns. I am sure that elements of the new offence will be scrutinised when we come to them in Committee.
The right reverend Prelate the Bishop of Derby wanted to hear more about other strands of the serious and organised crime strategy, namely the three Ps of Prevent, Protect and Prepare. I agree that they are just as important as the Pursue strand. The measures in the Bill to improve the operation of serious crime prevention orders and gang injunctions are designed to prevent people from engaging in serious and organised crime. However, here, as elsewhere, prevention is better than cure. I noted very much the right reverend Prelate’s comments about involving the police, local government, education and faith groups, in the last of which he has shown what can be done, particularly in local circumstances.
The noble and learned Lord, Lord Hope, queried the draft of new Section 36A of the Serious Crime Act 2007, which is concerned with the standard of proof that is applicable to proceedings in Scotland in relation to serious crime prevention orders. The noble and learned Lord has made a telling point in contrasting the approach taken in the Bill with that taken in the 2007 Act as it applies to England and Wales. I undertake to consider the matter further before Committee.
The noble Lord, Lord Howarth, felt that the Bill reinforced, in his view, another big push in a failed drugs strategy. I know that the noble Lord is totally sincere in his view that drugs are an iniquity and I know that he does not favour drugs but takes a more liberal view towards those who find themselves in a world of drugs. I think that he is wrong. Drugs are illegal because scientific and medical analysis has shown that they are harmful to human health. They can destroy lives, as we all know, and cause misery to families and communities. The drugs strategy—reducing demand, restricting supply, building recovery and supporting people to live a drug-free life—aims to take a balanced, evidence-based approach to tackling drug use that works within international conventions. We are confident that our approach is the right one. Drug use has fallen to its lowest level since records began in 1996. People going into treatment today are far more likely to free themselves from dependency than ever before.
The noble Lord, Lord Harris, and my noble friend Lord Wasserman asked about the responsibility for counterterrorism policing. Our position has not changed. We will take a decision following a review and conduct that review only when the NCA is more established. I remind the House that the NCA came into being only last October.
Finally, the noble Lord, Lord Sherbourne, referred to the provision in Clause 65 that extends extraterritorial jurisdiction for offences under the Terrorism Act 2006. That is an important provision to help further to protect the country from those who commit acts preparatory to terrorism or undertake terrorist training abroad.
I have a further point for the noble Lord, Lord Rosser. The Government are making £860 million-worth of investment over five years to 2016 through the national cybersecurity programme and have so far committed £72 million of that programme over four years to build law enforcement capabilities to tackle cybercrime.
I have been overtaken by time and a lot of issues have been raised. I hope that I will be able to help noble Lords by writing to them in the period between now and Committee. I will try to take the opportunity at that stage to reinforce those views so that they are on the record. In the mean time, I thank noble Lords and commend the Bill to the House.