Psychoactive Substances Bill [HL]

Debate between Lord Blencathra and Lord Rosser

Tuesday 30th June 2015 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I will make just a brief point on the amendment in the name of the noble Baroness, Lady Hamwee. I would be surprised and appalled if the advisory committee was not one of the consultees in the Bill. But I am not sure it is necessary to actually mention it. The Secretary of State is under an obligation to consult such persons as appropriate, and clearly, the advisory committee is one of the top ones on the list to be consulted. If the Home Office failed to do so, in my experience we would be in court on a judicial review within minutes and the Secretary of State would lose the case for failing to consult an appropriate body.

It is one thing having a duty to consult, but that is quite different from being under an obligation to carry out all the advice the committee can give. It is perfectly legitimate for the Government to consult the advisory committee but then reject some of its advice after due consideration. If it is not given due consideration, again, that is a case for judicial review. While I agree that the committee must be consulted, I am not sure it is really necessary to put that in the Bill. Perhaps the Minister will clarify that in his response.

[Lord Rosser (Lab)]

We very much support the points that have been made by the noble Lord, Lord Norton, and the Constitution Committee, and we await with interest the Minister’s response to them. I thank the Minister for his letter of 15 June, which followed up on the Second Reading debate, and in particular on questions that I and three of my noble friends had asked about the role of the Advisory Council on the Misuse of Drugs in relation to the Bill.

We are a party to Amendment 20, spoken to by the noble Baroness, Lady Hamwee, which relates to Clause 3 on “Exempted substances”. Clause 3(3) says that before any regulations to amend Schedule 1 are made,

“the Secretary of State must consult such persons as the Secretary of State considers appropriate”.

The purpose of the amendment is to add the reference to the Advisory Council on the Misuse of Drugs. I note the point that the noble Lord, Lord Blencathra, has just made but one could interpret the Bill as saying that there is no statutory requirement for the Secretary of State to consult anyone because it is open to them to conclude that they consider no person appropriate, despite the importance or significance of amending Schedule 1 and getting any such decision right. No doubt the Minister will comment on the point that in reality, under Clause 3(3) the Secretary of State could not get away with consulting nobody at all and that it obliges them to consult at least somebody. That is the point that the noble Lord, Lord Blencathra, made and I would like to hear a very specific response, on the record, as to exactly what Clause 3(3) means in that regard.

Referring to another point made by the noble Lord, Lord Blencathra, the Minister’s letter of 15 June 2015 states:

“The ACMD is required by statute to be consulted before any amendment by Order in Council is made to Schedule 2 to the Misuse of Drugs Act 1971”.

The principle of the ACMD being required by statute to be consulted is thus not new, and I do not see how it can be argued that somehow it is unnecessary to put it in the Bill, given that the Minister’s own letter refers to that already being a requirement. If the Minister is going to oppose Amendment 20, I hope he will explain the reasons for doing so in some detail. In his letter he says that the Government are,

“ready to consider carefully any recommendations the ACMD may have about other aspects of the Bill”.

Has a response been received from the ACMD? Has it said whether or not it wishes to be consulted as per the terms of Amendment 20, to which we are a party? What difficulties does the Minister believe there would be if the ACMD had to be consulted as per this amendment, and who exactly might the “such persons” referred to actually be?

Finally, to come back to the point I made earlier and which the noble Lord, Lord Blencathra, has already made, does the Minister think it right that the Secretary of State could apparently make a change to Schedule 1 without taking expert advice? That is what Clause 3(3) apparently enables the Secretary of State to do, unless the Minister is going to tell me that I have misunderstood it.

--- Later in debate ---

[Lord Blencathra]

I rise briefly in response to a point made by the noble Lord, Lord Paddick, when he mentioned that the closure of the head shops in Ireland had resulted in the whole trade going underground. I am not sure whether my noble friend has had a chance to see it or research it, but my Google alert this morning said that some new report had been published by some doctors or professors in Ireland—maybe it was Dublin university, or something—that suggested that, quite the contrary, use of psychoactive substances overall had declined dramatically with the head shops ban and it had not gone underground, as people had feared. I have not had a chance to Google it and study it all but, if my noble friend is not aware of it, perhaps he and his assistants in his office can swot up on it. I am sure that it is a measure that will be addressed again at Report. We had a big debate last week on the situation in Ireland, so it would be worth while studying this academic research to see whether it is kosher.

[Lord Rosser]

As the noble Lord, Lord Paddick, said, the amendment would introduce a system of licensing to sell psychoactive substances determined to pose low overall risk, which is contrary to the objectives of the Bill as it currently stands, which is to provide for a ban on new psychoactive substances. My noble friend Lord Howarth of Newport has already referred to the views of the Local Government Association and its lack of enthusiasm for this amendment, saying that it would oppose councils being made responsible for licensing because of the difficulties of assessing whether a product is a low overall risk. My noble friend Lord Howarth went on to refer to the further comments that the LGA made about the need for a very thorough regime to be in place if we were to go down the road that was being suggested in this amendment. The Government’s expert panel also said that it would be difficult to define low risk from a legislative and harms perspective and, even if it could be done, a mechanism for controlling new psychoactive substances would still be needed, which could lead to confusing messages about new psychoactive substances overall.

How does one decide whether a drug is safe? There are immediate risks that occur and also long-term risks that occur, including long-term psychological issues and dependency, so what does low harm mean in that context? The amendment refers to everything being set out in regulations, but I am not sure whether, under the terms of the amendment, a drug would be presumed safe until evidence came to the contrary or whether the producers of a drug would be expected to prove that the drug was safe. If so, how would you do that, how would you determine all the possible different types of harm, and would it have to involve human trials—because, without trials, how do you determine harm or otherwise?

The amendment refers in a sense to Clause 3, which provides that the,

“Secretary of State may by regulations amend Schedule 1 in order to … add or vary any description of substance”.

We had a discussion earlier today about the significance of the word “vary” but, in the light of the Minister’s response at Second Reading, I am still not clear why that provision in subsection (2)(a) is there, and why the Secretary of State may add a substance to the list. Listening to the Minister’s response at Second Reading, I got the impression that he was making it very clear on behalf of the Government that the Secretary of State would not be adding substances under the terms of Clause 3. Bearing in mind that the Government have put it here in the Bill, I would simply ask: in what circumstances do they envisage the Secretary of State adding to items in Schedule 1?

Psychoactive Substances Bill [HL]

Debate between Lord Blencathra and Lord Rosser

Tuesday 23rd June 2015 Lords Chamber

[Lord Blencathra]

My Lords, I am sympathetic to the noble Baroness’s amendment. Of course, we need some monitoring information and we need information around effectiveness, but I am just not sure that the Home Office or a government department is the right body to produce such independent information. It may be, but I have my doubts.

My main concern about the noble Baroness’s amendment is the timescale. Having listened to the noble Lord, Lord Howarth, I am now very concerned about the timescale if the Government, or anyone else, attempted to report on the wide range of things he has suggested. I am not being facetious, but it struck me that compiling a report of the length that the noble Lord wants would probably end up taking longer than the new sexual abuse review by the distinguished New Zealand judge. I do not mean that as a facetious comment or to diminish the work she is doing.

The noble Lord, Lord Howarth, and many others in this Chamber have some experience in government. I think we know that if a government department were to produce a report within 12 months, it would have to be approved by the Cabinet at month 11. This is a territorial Bill and would need to go round all the territorial Governments in months 9 to 11 to be checked by them. It would need to go round the UK government departments in Whitehall, probably in month 8 or 9, to be amended by them, which means that the Minister in the Home Office, or wherever, would need the first draft in about month 6, which would mean that civil servants would start writing it in month 3.

I say to the Minister: if the Government have to produce a report, preparing one within 12 months of the Act would not be sensible. It would be impossible—no, it would not be impossible, but it would include only a fraction of the information that one would want. There may be merit in the Government producing a report, but not of the length that the noble Lord, Lord Howarth, has suggested and certainly not within the 12-month timescale.

[Lord Rosser]

We have an amendment in this group and it is not about post-legislative scrutiny. It calls for the Secretary of State to publish an annual report on new psychoactive substances and sets out some of the information that must be included in the report.

There is currently a real lack of data collected and published on new psychoactive substances and their impact. For example, the first indication of a new drug tends to come from a hospital admission. If this happens in the United Kingdom, the National Poisons Information Service is informed and it then advises the European Monitoring Centre for Drugs and Drugs Addiction. The EMCDDA tells the National Poisons Information Service of drugs detected elsewhere in Europe. However, the Home Office keeps its own lists, the main one being the forensic early warning system, and, to date, successive Ministers have been unable to explain the relationship between the EMCDDA list and the Home Office list, which suggests that data are not being collected and published in a consistent or helpful way. Similar problems arise with monitoring drug-related deaths and overdoses. No proper data are collected on drug deaths as the data we have rely on examining countless records, which is why they are often incomplete and take years to publish.

There is a significant problem, too, with hospital admissions. The National Poisons Information Service collects new drugs but does not collect data on all drug- related overdoes. We do not know how many hospital admissions result from taking these new substances. Nor do we know in how many cases new psychoactive substances were a factor for those needing to access mental health services. Anecdotal evidence suggests that legal highs are a major factor, especially for adolescent mental health services.

In their response to the expert panel, the Government accepted the importance of information on new psychoactive substances and that it should be shared systematically at both a local and national level in a timely manner. However, the Government did not appear to accept the current inadequacies in the information, including those to which I have referred.

The expert panel said that, with the rise in the availability of NPSs, coupled with possibilities for NPS market development via the internet, the UK drug scene had become increasingly complex and fractured, and that a number of information issues arose from this. These included,

“the difficulty for any one agency to keep to keep abreast of all the new developments … the acknowledgement that the Misuse of Drugs Act 1971 needs to be supplemented by other legislation has meant that more professional networks require information including trading standards … the current time lags involved between data collection and publication of data obtained by current networks mean these systems cannot be employed in the service of providing more timely early-warning-type information; and … the need to collect, analyse and distribute information in a more systematic and timely fashion to help inform policy and practice at both a national and local level”.

Frankly, the Government’s response did not address all these issues since there seems to be a view that the forensic early warning system’s annual report can fit the bill. In its recommendations, the expert panel says:

“There is a need to establish prevalence, evidence and harms associated with NPS”.

It suggests that we should:

“Develop detection and data collection tools across criminal justice and health services, and other relevant settings, for example, schools and universities”.

A recommendation refers to developing,

“internet tools to monitor internet activity around NPS”,

and to the need to:

“Record health and social harms related to NPS by utilising professional networks and other early warning systems … understand local markets, including through headshops, retail outlets, prisons and local police assessment”.

On enhancing the share of information on NPSs, the panel said:

“Sharing information at both local and national levels is essential in helping to achieve a reduction in the demand and supply of drugs and in promoting comprehensive and effective interventions”.

It is fairly clear from the report of the expert panel that it does not think enough is currently being done in the area of the provision of information. The purpose of this amendment, as I said at the beginning, is to provide for the Secretary of State to publish an annual report on new psychoactive substances. The amendment sets out, in not quite so extensive a list as that of my noble friend Lord Howarth of Newport, some of the information that should be included in that report.

I hope the Minister will reflect further on this issue—the importance of information on NPSs—and the adequacy of the current information and the systems and methods by which it is provided. Our amendment gives the Minister the opportunity to do just that and I hope it is an opportunity she will take.