Psychoactive Substances Bill [HL]
Debate between Baroness Meacher and Lord Bates(9 years, 4 months ago)
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Lord Bates
I ask the noble Lord please not to go to the other side just yet but to stay with me a little longer. I was referring to the amendment of the noble Lord, Lord Paddick, and was talking about the use of the term “novel” in this context. That was the ACMD point, as opposed to the point about the use of “synthetic”, which I shall come to later and have already touched upon. Now the noble Lord, Lord Paddick, looks puzzled; perhaps I have lost him in gaining the noble Lord, Lord Tunnicliffe. Perhaps I may continue with what I was saying and then I will come to the specific point raised by the noble Lord.
I accept that while our target in this Bill is substances that are harmful when misused, or which have the potential to cause harm, the Bill seeks to define the effect of these substances rather than to make any explicit reference to their harms. Of course, the advisory council has a considerable and impressive track record in making these harm assessments. It is a scientific body of experts which for the last 40 years has been advising successive Governments. These amendments would require assessments of individual substances, or even groups of substances, for the purpose of bringing them within the scope of the Bill and its offences.
Our fundamental issue with that is that it would perpetuate the inadequacies and frustrations of our current approach under the 1971 Act. As the expert panel found, a substance-by-substance approach would not meet our core objective to get fully ahead of the market and scientific developments. It would allow the suppliers to adapt their range of substances on sale in response to new controls. That is exactly what has happened in the past and is behind the purpose of this legislation. Indeed, by driving innovation in the market, the current approach adds to the harms caused by these substances, as each new generation of psychoactive substances is more potent than the last. We need a change in gear—that is what the blanket ban will deliver.
Finally, Amendment 9 adopts a different approach again to how we define a psychoactive substance for the purposes of the Bill. Clause 3 enables the Home Secretary to make regulations, subject to the affirmative procedure, which add to or vary the list of exempted substances in Schedule 1. As we have previously debated, the regulation-making power in Clause 3 has been designed to future-proof the list of exempted substances and ensure that, for example, medicinal products are not inadvertently caught by the blanket ban provided for in the Bill. Schedule 1 contains broad categories of established substances and products that we want to exclude from this regime, mostly because they are already regulated by other legislation.
I turn to the specific point put to me by the noble Lord, Lord Tunnicliffe. He pointed to the advisory council’s concerns about proving psychoactivity as a point of law. I wrote to the noble Lord on this very issue, and he quoted my letter, in which I said:
“The Government is committed to supporting the law enforcement community in the exercise of their powers under the Bill. We will work with the national policing lead and College of Policing on the development of policing guidance”.
It is important to recognise that different powers in the Bill apply to different standards of proof. For example, the powers of seizure in Clause 42 operate to a “reasonable belief” test. An officer’s reasonable belief that a substance is psychoactive could be based on a number of factors, including the substance’s packaging, its markings or even whether the individual from whom it was seized appeared intoxicated and the officer could infer that the substance found might be responsible. The same “reasonable belief” test applies to the issuing of a prohibition notice or a premises notice. Applications for prohibition orders and premises orders are determined on the basis of the balance of probabilities.
In the case of a prosecution for an offence under Clauses 4 to 8—I think that this comes to the point that the noble Lord invited us to look at—we have the criminal test of “beyond reasonable doubt”. Clause 25, which is referred to in my letter, deals with the offence of failing to comply with a prohibition order or premises order. That clearly involves the civil test of the balance of probabilities. However, failure to comply with the order can involve a criminal sanction. Therefore, quite rightly the noble Lord came back and asked whether it was possible that we could end up with someone being caught between the two tests—the civil and the criminal—and facing a criminal sanction on the balance of probabilities test. As I understand it, that is at the heart of his concern. I can certainly give him the assurance that before any criminal sanction could be made under Clause 25, there would need to be proof to the criminal standard of “beyond reasonable doubt” that the substance involved was indeed psychoactive.
I hope that that clarification will help the noble Lord, Lord Tunnicliffe, with his concerns. I also hope that the point that I made right at the beginning to the noble Baroness, Lady Meacher, that we are continuing in a genuine dialogue with the Advisory Committee on the Misuse of Drugs, will allow her to—
Baroness Meacher
Before the Minister sits down, I would like to put one question to him on that issue. He said at the beginning that he was not ruling out the term “synthetic”, but I then became very confused when he started talking about a number of botanicals. Does he agree that there is in fact great value in separating the machinery for botanical substances, which are developed over many years and which can be brought under the Misuse of Drugs Act if they are dangerous—harmful—from synthetic substances, which need a rather different kind of machinery? I think that the Minister was indicating that there are botanical substances that may be to some degree harmful.
Of course the police are able to use common sense. They tend not to arrest and criminalise the possession of herbal cannabis. They will know that it is infinitely less dangerous than something such as alcohol. The same would apply to other botanical substances developed over many years. If they were brought under the Misuse of Drugs Act, which the Minister referred to as rather draconian, that Act also could be used with a degree of common sense. I want to be clear whether the Minister accepts the great value of separating these two completely different sets of substances.
Lord Bates
The noble Baroness goes to the heart of the issue; we have a problem with that. We are just not convinced. There are botanicals, to which we have referred. There are other substances, such as nitrous oxide. Does “synthetic” as a term cover what we want it to cover, or will we be reassembled back here at some future date trying to clamp down on another loophole which has been exploited? That is the difficulty. When I say that I am not ruling out the term “synthetic”, that is absolutely correct, but we want to make sure that if the term is used, it is understood in a legal context as achieving the intention of the Bill, which is to uphold a blanket ban. I hope that, with that, I have provided some clarification.
Lord Bates
In responding on the Bill, I gave a number of examples of particular botanical substances that would fail the test of “synthetic”. Therefore, it is very much as my noble and learned friend has said. Those substances do not meet the harm threshold of the 1971 Act, but some natural substances are controlled under it. This is part of the confusion and discussion that is still to be resolved, but we believe that what we have at the moment is clear in terms of the intent of the Bill and that to insert “synthetic” at this stage would unnecessarily limit the scope of the Bill and potentially open up new loopholes, which would need to be closed down legislatively on another occasion.
Baroness Meacher
My Lords, I thank all noble Lords who have contributed to this debate. It has turned into an incredibly wide-ranging, constructive and interesting debate, so I am most grateful to all noble Lords. I want to pick up in particular on the comments made by the noble and learned Lord, Lord Mackay. His initial comment was that he had no problem with the word “synthetic” and then introduced a very interesting point: that the intention behind a substance is very pertinent. Interestingly, he raised a similar point in writing to the chairman of the ACMD, saying that this would be a helpful addition to the definition of a synthetic psychoactive substance. If you bring in the intention behind the substance, then you have really got it. I am very grateful to the noble and learned Lord for that contribution.
Things became a bit more confused a little later, because if a botanical substance is treated and becomes a psychoactive substance it would automatically come within the definition of synthetic psychoactive substance. That is the purpose of the amendment: to keep a separation between genuinely botanical products, which take years to develop and produce and which can very properly be controlled under the Misuse of Drugs Act, and those substances which are treated, and can be treated rather quickly, to create another synthetic psychoactive substance. Those latter should be brought under the control of this legislation. It seems to me that we can produce two sets of very logical, useful legislation to deal with those two completely different types of substance. They might have similar effects, but their production and its timeframe are entirely different. They have to be treated differently under the law. I wanted to make that position clear bearing in mind the points made by the Minister, who said that he was not ruling out the use of “synthetic” but then raised some rather serious questions about whether he could introduce “synthetic” to define psychoactive substances covered by this Bill.
The crucial point here is that the Irish experience shows that you cannot assess whether a substance is psychoactive without using human beings to test it. It has not worked in Ireland. Dealing with the matter in the way that we have suggested in the amendment is a great deal better than they have managed to do in Ireland.
I hope I have managed to thank everybody adequately. I also thank the Minister for his meetings with me and, in particular, for the very helpful meeting we had yesterday. Only because I know that the ACMD supports us in this amendment and now feel confident that the Government will have serious discussions with the council about this issue, and because I am therefore confident that the Government will find their way to doing the sensible thing and having this clear division between botanicals and synthetics, I am prepared to withdraw my amendment.
Psychoactive Substances Bill [HL]
Debate between Baroness Meacher and Lord Bates(9 years, 5 months ago)
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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.
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.
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.
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.
Psychoactive Substances Bill [HL]
Debate between Baroness Meacher and Lord Bates(9 years, 5 months ago)
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Baroness Meacher
I feel awful intervening at this time of night. We all need to go home. I just want to raise the point that the expert panel was established, as I understood it, rather than referring to the ACMD for its advice on some of these issues. I do not want the Minister to reply right now—perhaps he can do so when we next meet—on the question of how the expert panel was selected. It seems extraordinary to me that any set of experts would advise against having a calibrated system of low, medium and high risk and risk-associated penalties and responses to drugs. At this late hour I do not wish to say more, but I would be grateful if the Minister thought about this before we meet.
Lord Bates
I apologise to the noble Baroness, Lady Hamwee. She drew attention to Clause 3(3) which states:
“Before making any regulations under this section the Secretary of State must consult such persons as the Secretary of State considers appropriate”,
and asked for further clarification. We have not specified in the Bill who such persons should be, as the appropriate consultees would need to be tailored to the substance under consideration. That said, and reflecting the terms of Amendments 16 and 19, the Royal College of Psychiatrists, the British Pharmacological Society and the Academy of Medical Sciences could well be part of the consultation process. I will leave to one side the matters relating to the role of the Advisory Council on the Misuse of Drugs because they will be raised in subsequent amendments. Again, I apologise to the noble Baroness for not covering that, but I got a little carried away in responding to the challenge of the noble Lord, Lord Howarth.
Drugs: Cannabis
Debate between Baroness Meacher and Lord Bates(9 years, 5 months 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.