Psychoactive Substances Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Howarth of Newport

Tuesday 14th July 2015 Lords Chamber

[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.

[Lord Howarth of Newport]

What would be the practicalities of trying to prove the intention of a chemist in China?

[Lord Mackay of Clashfern]

The intentions in China are possibly as human as intentions here. If people produce a substance in China, it is bound to be possible to say why they are doing it. I agree that the more remote they are, the more difficult it is to bring to bear our criminal system but the system has to work when the drug is brought into operation in this country. The people who bring it in will have a purpose. They will no doubt have some kind of relationship with those who produce it, in China or elsewhere. I do not think that they are normally bringing it in as a charity but for some commercial purpose.

As far as I can see, the type of approach that the noble Baroness, Lady Meacher, has suggested may be capable of being rephrased to bear on the purpose for which the drug is produced. If that were possible, it would be a much more feasible and workable solution than is contained in Amendment 2 at the moment. I am very sceptical about anything I could say about a definition of this kind that is supported by no less a person than the noble Lord, Lord Rees of Ludlow. However, this has legal implications as well, which is why I have been encouraged to say what I have thought about it up to now.

Psychoactive Substances Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Howarth of Newport

Tuesday 23rd June 2015 Lords Chamber

[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 Mackay of Clashfern]

The impact assessment to some extent deals with that. It is plain that the difficulty has arisen in relation to the emergence of new substances whenever a particular prohibition is enacted. I hear what the noble Baroness, Lady Meacher, says about this. The problem is that by the time the enactment takes place, considerable harm may be occurring. The idea of this Bill is to prevent the production of these dangerous substances as a general matter of course.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I just wonder whether it would be for the Secretary of State to monitor this. I would have thought that the importance of this topic, particularly in the light of the concerns that the noble Baroness has expressed, would merit post-legislative scrutiny by a committee—usually a Joint Committee of both Houses—rather than by the Secretary of State. There is room for that sort of consideration to be kept in mind. I think that the Minister has given at least some encouragement to that and I certainly think that that would be a good thing to do, rather than have the Secretary of State in a sense being his own monitor in this area. It is better that it should be independent, in the sense of being done by Parliament.

[Lord Howarth of Newport]

My Lords, I suggest that post-legislative scrutiny would be assisted if the Home Secretary, on behalf of the Government as a whole, were to make an annual report to Parliament along the lines that the noble Baroness, Lady Meacher, has suggested. I propose that an annual report from the Government as a whole should cover the three principal strands in the drug strategy introduced by the coalition Government in 2010: reducing demand, restricting supply and building recovery.

I hope that the annual report would begin with a presentation of the facts, in so far as they had been ascertained by the Government, and that it would cover developments in the usage of drugs of all sorts: controlled drugs, psychoactive substances under the terms of the Bill, exempted substances under the terms of the Bill, and prescription drugs of which there is abuse. I would also want to see a breakdown by age groups and by regions. We need to know about consumption patterns—whether the consumption of one drug is being displaced by consumption of another; what new drugs are available to consumers in this country; what the most popular ones are, and the ones about which there is the greatest cause for anxiety. We need to know about developments in purity, potency and toxicity.

I hope that the Government would advise Parliament on the development of markets in drugs and tell us what us has happened to the head shops, year by year. Maybe they will all close down quickly, as in Ireland. If so, I hope that the Government would then tell us where people are finding their drugs—perhaps from online sources such as the surface web, but perhaps from the grey net or the dark net. All this is usefully discussed in a preliminary way in the latest annual report from the European monitoring centre. But 18 months ago, the European monitoring centre reported that there were 651 websites selling drugs to Europeans. We need to know what the evolution of this online market is and about the shifting locations. The noble Lord, Lord Bates, told us just now that, following the legislation in Ireland, Irish web-based domains were closed down. But we know that at the same time the consumption of new psychoactive substances has risen in Ireland. Where, then, are Irish consumers obtaining their drugs? We would need to have that equivalent information here. We need to know about patterns of social media use relevant to the drugs trade and what is happening in terms of street markets and gangs.

I hope also that the Home Office would report to Parliament on the drugs situation in prisons, which is an extremely disturbing situation, one understands. Which drugs are most in use in prisons? How have they been obtained? The Home Office should report on any issues there may be about corruption in the National Offender Management Service; on the effectiveness, as it believes it to be, of the means it is using to try to reduce drug consumption in prisons; and on the effectiveness of rehabilitation. Very importantly, the Home Office needs to report on the question of continuity. What happens to prisoners when they leave prison? Do they continue to have the benefit of rehabilitation services? What is the relapse rate? The noble Lord, Lord Ramsbotham, told this House, perhaps a couple of years ago, that the Chief Inspector of Prisons had reported that in Her Majesty’s Prison Oakwood it was easier to obtain drugs than soap. We need to know what progress the Home Office and the Government as a whole are making with regard to prisons.

We should be advised on the Government’s dealings with the Advisory Council on the Misuse of Drugs—what advice they have sought from the council, what advice they have received from the council, what advice they have accepted from the council and what advice they have rejected from the council. In the case of rejection of the council’s advice, I hope that the Government would offer a reasoned explanation as to why they have declined to accept the advice that the ACMD has given—as has occurred on a number of occasions in recent years.

We should be told what drugs have been newly controlled under the Misuse of Drugs Act regime and about how, in practice, the relationship between the various relevant regimes—the MDA regime and the regime created under this legislation in respect of psychoactive substances and exempted substances—relate to each other, and whether it is effective co-ordination or the Government see problems in having at least three different systems of regulation operating concurrently. I hope that we would hear about the dealings of the Government with other consultees and partners: people with academic expertise, the voluntary sector, non-governmental organisations and other expert organisations.

We should be provided with information about the state of forensic services, about which the Home Secretary has recently expressed her own personal anxiety. We will come a little later in our proceedings to talk about the possibility of a network of testing centres. Do the Government think that that is desirable? If so, what progress is there in making testing facilities widely available around the country? We will need a report on progress in education and training, but, again, we will have an opportunity to discuss those issues more extensively a little later.

I hope that we would hear about the impact of drug usage of all kinds—controlled drugs, psychoactive substances and the exempted substances—on health, society and the economy. The European monitoring centre has particularly asked the Government to monitor acute drug-related harms. Again, I would expect to see their response to the EMC reflected in the report. Of course we would want to know about the progress of treatment and engagement strategies with different groups of consumers or people at risk.

We should hear a report on enforcement and the strategies of the NCA, the police and Her Majesty’s Revenue & Customs. If the online trade is thriving, and if that is becoming the principal source of supply, we should be advised what percentage of postal packages, for example, the system is able to check for drugs. We should also know what percentage of shipping containers the Government are able to inspect.

Surveillance will be another important component of the report. What powers are the Government using to ascertain what is going on in the drugs trade, particularly the online trade? We need to know the statistics on the usage of data-search powers and have an assessment of their effectiveness. Perhaps a little later, the Minister will give us some preliminary thoughts on how the enforcement regime that the Government are proposing to create through this legislation will relate to the new surveillance regime, which we understand the Home Office will introduce later in the year. Undoubtedly, these things will need to be understood in conjunction.

The Bill creates powers of prohibition notices and prohibition orders, and we would want to hear about the incidence and effectiveness of the use of those powers. We would want to know the number of seizures and successes, but also about the challenges that the Government identify. The new stop-and-search powers created in the Bill are another appropriate subject for report and we will debate those towards the end of Committee.

We would need to hear about the Government’s progress in dealing with the problems of money laundering and the extent to which the proceeds of the drugs trade are thought to be funding terrorism. We will need to know about the costs of enforcing this regime—not just to the NCA, the police and HMRC but to the Financial Conduct Authority, which I think has lead responsibility for dealing with money laundering; the criminal justice system, which, for example, will incur costs in hearings in the attempt to establish definitions of psychoactive substances; and the Foreign and Commonwealth Office. At Second Reading, the Minister was kind enough to say that he would follow up the point I made previously, that when mephedrone was banned, the Government did seek to come to an understanding with the Chinese authorities so that they would facilitate the effective interdiction of supply. However, it appears that that did not work very well because production shifted to India. We will want to know what part the Foreign Office is playing in assisting the Home Office to make a success of its strategy.

The local government dimension is hugely important. The Minister has explained that the Government are acting in response to pleas from the Local Government Association, and we all understand how very unpleasant and difficult it is for people if they have head shops in their neighbourhoods and the anti-social behaviour that may be associated with that. But there will be costs for local government in training and maintaining in the field the numbers of trading standards officers that are going to be needed and, I dare say, in prevention, more youth workers. Again, it would be useful to know what is going on there. The Department of Health will have a whole complex story to tell.

I think that the Government would owe it to Parliament to provide in the annual report a cost-benefit analysis of the overall strategy: have they found, with experience, that the policy is working as they hoped? How does it need modification? What do they see as the way forward?

I acknowledge that all this may make for quite a long report, but I think that it would be very interesting and worthwhile and a very useful form of accountability of government to Parliament.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Mackay of Clashfern and Lord Howarth of Newport

Wednesday 25th April 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, the practice of the House of Commons, as I understand it, is that when an amendment is called that involves financial privilege—in the opinion of the Speaker acting on the advice of the Clerks—this is intimated; and my understanding is that the Government would not be able to challenge that at all, just as we, as a matter of practice, do not challenge it either, although sometimes there have been occasions when some have felt there was a possible reason for challenge. However, as a matter of practice, we do not do that. It is open to the Government—notwithstanding the fact that financial privilege is involved—to invite the House of Commons to agree to an amendment that involves financial privilege. Then the Speaker has to certify in the Journal that a matter involving financial privilege has been passed by the House of Commons. The reason for that is that the House of Commons requires, generally speaking, a money resolution in respect of any expenditure involved in a Bill; and if a Bill involves expenditure, a money resolution has to be passed at some stage during the course of the Bill.

In this procedure, there is no room for a money resolution as such, because that happens earlier, but the signification made by the Speaker—in that situation where the House of Commons has decided, notwithstanding that financial privilege is involved, to agree to the amendment, in whole or in part—goes into the Journal in order to replace the need for a money resolution, and it of course authorises the Treasury to disperse money on the basis of that resolution of Parliament. That has nothing to do with the question of whether or not the amendment should be agreed, but, so far as concerns this House, if the resolution is based on financial privilege, the understanding has been—notwithstanding how difficult it might be on occasion for some of us to understand exactly how it arises—that we do not dispute that proposition.

[Lord Howarth of Newport]

Perhaps I may put it to the noble and learned Lord that while the exposition he has just given seems to be entirely correct, what is interesting—and this may not be a matter on which he personally would wish to comment, although I hope the Minister will do so—is why the Minister chose to emphasise at the outset of his speech that the amendment was subject to financial privilege. Of course it was. The Speaker made it clear to the House that that was the case. However, the Government could have asked the House to waive financial privilege and chose not to do so. That seems curious in an instance where nobody has been able to identify the expenditure implications of the particular resolution. That is what is perplexing us. Some of us have a larger worry about the practice that the Government have adopted of brandishing financial privilege at the outset of speeches in which they seek to refute or reject the advice of the House, because it tends to close down the argument. It leaves us wondering what the Government consider the useful role of this House to be.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Mackay of Clashfern and Lord Howarth of Newport

Wednesday 15th December 2010 Lords Chamber

[Lord Mackay of Clashfern]

Before the noble Lord seeks to answer that question, this debate has got to a stage where people seem to have forgotten that a statute dealing with referenda was passed by the previous Administration. It deals with all of these questions in considerable detail. There are some additional questions because as time has gone on more difficulties have emerged—for example, in relation to the internet—but there are already considerable provisions in the law about that. It is important to remember that this debate should be about this particular Bill and its particular circumstances.

[Lord Howarth of Newport]

Do we not need to learn the lesson from, for example, the referendum on a regional assembly in the north-east, where the no campaign was led by business interests? That campaign was relatively well-funded and was clearly against Labour Party policy. In effect, therefore, it was significantly in the interests of the Conservative Party. Does the Minister feel that the lessons of that experience have been adequately absorbed and that the existing legislation to which the noble and learned Lord, Lord Mackay of Clashfern, referred satisfactorily covers such circumstances? Or does he feel that the legislation governing referendum expenses needs to be brought up to date in the light of that example of how money can be spent in a political cause but not overtly by a political party?