Psychoactive Substances Bill [HL]

Lord Hope of Craighead Excerpts

Tuesday 14th July 2015 Lords Chamber

I hope that, by the time this Bill reaches the other place, the Minister and his colleagues will find language which delimits and denotes much more precisely and exactly the drugs which are the evil that we are trying to protect our young people’s health and lives from.

[Lord Hope of Craighead (CB)]

My Lords, the noble Baroness, Lady Meacher, is right to avoid the use of the word “novel” or “new”. The problem is that what may be new or novel today may not be so next year. What we are seeking to do in this legislation is to create a series of criminal offences, and the prosecutor will need to be very precise in leading evidence to satisfy the requirements of the definition. A solution along the lines suggested by the noble Baroness, supported by the noble Lord, Lord Howarth, avoids that word, which lacks the precision that is needed. Of course, the word new or novel is widely used in common parlance, but that is not really the test that should be applied for legislation such as this. I am therefore sure that the noble Baroness was right to find some other form of wording, and the one she has suggested avoids that difficulty.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I want to make two quick points as a codicil to this important group of amendments. I strongly support the attempt of the noble Baroness, Lady Meacher, to insert the word “synthetic”. As a former pharmacy graduate—non-practising—who studied such things, to me, the word “synthetic” makes perfect sense in this context, and it would make the Bill a lot clearer. I also support the amendments in this group that would reintroduce the concept of harm, which the 1971 legislation introduced in a way that has stood the test of time. Indeed, I am behind the thrust of all these amendments.

My noble friend Lady Hamwee referred to the Committee stage of this Bill, which the ministerial team dealt with in an exemplary way; it listened very carefully and did the best it could. But any Member of this House who has had the advantage, as some of us have, of reading the recent letter from Professor Les Iversen and the Home Secretary’s response of a few days later, will be left, as I certainly am, with a real concern about the difference in tone between the two approaches taken. I and many others expressed the concern in Committee that the Advisory Council on the Misuse of Drugs was being written out of the script. I use that harsh language deliberately, although I am not blaming the Minister.

On the second page of his letter, Professor Iversen says:

“The ACMD … wishes to present its concerns that the Bill, as drafted, may not achieve its aims”,

which is a pretty fundamental thing to say,

“and may produce serious unintended consequences”.

The heading of the subsequent paragraph states:

“The omission of the word ‘novel’ has widened the scope of the Bill”,

which all of us on my side of the argument were arguing against with the Government Front Bench. The heading of the next paragraph states:

“The psychoactivity of a substance cannot be unequivocally proven”.

Again, with my academic background, I support that view, which is the one taken in Committee. The heading of the next paragraph states:

“The Bill uncouples the concept of harm from control of supply, importation and production”,

which is the point that the noble Baroness, Lady Meacher, and others were making.

What relationship do the Government really have with the ACMD, given that they seem to be so far apart? We had a manifesto commitment which talked in yellow journalese about,

“a blanket ban on all new psychoactive substances, protecting young people from exposure to so-called ‘legal highs’”.

That is the kind of language we would see in manifestos, and a few short weeks or months afterwards we get this Bill, which seems a long way away from Professor Iversen and his colleagues. That is a concern to me. I do not blame the Minister, by the way, but that is a concern that this House is right to reflect on Report. Admittedly, there are proceedings in the House of Commons and I am sure that the Minister’s approach in Committee—the way that he was prepared to pick up points and reflect on them—will continue. I have been in this business a long while and I can see a long distance between these two bits of correspondence. The Minister has some work to do to persuade this House on Report that that gap is not dangerous and that people may not get hurt unless this is sorted out before the final passage and Royal Assent of this Bill.

--- Later in debate ---

[Lord Elton (Con)]

My Lords, I have a very small question to ask relating to the definition of harm, which is qualified by the word “social”. I wonder what in fact that constitutes. If a drug results merely in the inability of the user to sleep satisfactorily or if it interferes with his learning but does not, as a general effect, cause him to disrupt those about him, is it still a social harm? It seems to me that self-harm is a dangerous product of these drugs and it would be a great pity if individuals taking them were not protected when we have the opportunity to do so by a definition which included that which harms the individual as well as society. This is a lawyer’s question. I hope that the noble and learned Lord, Lord Hope, might be able to lay my fears to rest; otherwise, either the Minister or the mover will doubtless do so.

[Lord Hope of Craighead]

My Lords, I am not sure if I am allowed to speak again on Report but I am challenged here. The words in the amendment are “social problem”, not social harm. I think that may be an answer to the noble Lord. They are different phrases, with different meanings.

[Lord Mackay of Clashfern (Con)]

My Lords, I have no particular difficulty with the first amendment concerning “synthetic”, and I think I indicated that to the Minister some time ago before it was actually formulated as an amendment.

However, I have considerable difficulty with the second amendment and how it is going to work. If somebody produces this material and that production is to be a crime, in the general view I have about the law he must at least have the means of finding out whether what he is doing is criminal. The difficulty that has been expressed before in relation to these psychoactive substances is that they are produced so quickly and changed so quickly and the harm is done so quickly that the Misuse of Drugs Act can hardly catch up with them. That is a very serious problem.

I agree very much with what the inspector has said in his report about the difficulty of prisons. Indeed, I have been told before that there are considerable difficulties with the input into prisons, by whatever means, of these legal highs. They certainly seem to have the effect of producing considerable violence, which is undoubtedly a social problem if ever there was one. How is this to work? The Advisory Council on the Misuse of Drugs will have to give advice. Will that not create exactly the same difficulty as the attempt to use the Misuse of Drugs Act to control these legal highs has proved to have in the past? That is the need and reason for the production of the Bill.

The noble Lord, Lord Howarth of Newport, said that the definition is very wide. My view is that, on the whole, the legal effect of a definition is rather more related to its precision than to its particular width. In some cases, the definition of what is made criminal is very wide indeed—as undoubtedly it should be to encompass many methods of carrying out the offence. I cannot see how the mechanism suggested here is going to be capable of working, given the problems that exist. I have been trying to think of how this could be modified but so far without too much success, except that something depends on the intention of the laboratories producing these substances. What are they doing it for? Are they intending to help people to sleep well or behave well and so on? I think they are probably not.

The purpose for which these substances, which may be synthetic, are produced seems highly relevant but it is quite difficult to get at defining an offence by reference to that. However, if the purpose for which the substance is produced is something that the state considers should be criminalised, that is a possible way to define an offence. That would at least have the effect of it being decided in relation to the time of production. It might not be possible to prove it immediately but the essence of it would be something that has happened before that production was put into the hands—or the body, one way or another—of the person receiving it, which is part of the crime that the Bill seeks to establish.