Psychoactive Substances Bill [HL]

Debate between Lord Paddick and Lord Howarth of Newport

Tuesday 30th June 2015 Lords Chamber

[Lord Howarth of Newport]

My Lords, this amendment proposes that the possession for personal use of any psychoactive substances, including psychoactive substances hitherto controlled under the provisions of the Misuse of Drugs Act 1971, is not a criminal offence. We touched quite extensively on this issue in the debate on Amendment 23 in the name of the noble Lord, Lord Paddick, but his amendment ranged considerably wider. I hope that the Committee will be willing to focus more tightly on the specific issue that is expressed in the proposed new clause.

In recent years, some 25 countries have removed criminal penalties for personal possession of some or all drugs. Now, for the first time, Her Majesty’s Government of the United Kingdom are tiptoeing towards the decriminalisation of possession for personal use because they have omitted, quite deliberately, to criminalise such possession where psychoactive substances are concerned, as defined in the Bill. However, that raises the question of why they are stopping at new psychoactive substances and, of course, the substances that are exempted in Schedule 1. Why do they not now proceed to decriminalise possession for personal use of small amounts of drugs controlled under the Misuse of Drugs Act 1971? The policy is inconsistent and confusing. As such, I fear that it is liable to damage respect for the law, and the law in respect of drugs is already not much respected as it is.

Why does the Home Office judge it appropriate to criminalise young people wholesale? I am advised that in the period 2009 to 2013, 59,742 young people under the age of 20 were criminalised for possession of controlled drugs—something like 29% of young people in that age group who received a criminal record. Such an approach is clumsy, to say the least, and I submit that it is very damaging to those young people: the short-term and long-term effects of having a criminal record weigh heavily on their educational and employment prospects and their prospects of being able to obtain credit. It is also expensive for the Exchequer. The continuation of this criminalisation appears to ignore the findings of the Home Office’s own study, Drugs: International Comparators, which found that the relative toughness of the prohibitionist approach makes no difference to actual consumption.

Like it or not, the recreational use of drugs is widespread in our society. Indeed, I would say that in certain sections of society it is normal. I do not know whether we are welcoming the Minister on his return from a fact-finding mission to Glastonbury at the weekend; he may perhaps have been invited by the organisers in his official ministerial capacity or perhaps he went incognito, possibly not even wearing his suit. I like to think that he was accompanied by Lady Bates and that she may have been bearing in her hand at least a small posy of flowers, because it could be the last time under this legislation that he will have the opportunity to give her flowers—then he will have to default to his position of presenting her with chocolates.

If the Minister was at Glastonbury, no doubt he will have ignored the vapourings coming from left field from such figures as Billy Bragg and Charlotte Church, but he will not have failed to notice that significant numbers of young people there were consuming psychoactive substances. Possibly he regards all of them as lost souls. Still, he may have taken some satisfaction from knowing that this will be the last time that drugs will be consumed at Glastonbury because, through the virtues of this legislation, he will have completed the circle of prohibition: it will be impossible for them legally to obtain psychoactive substances in future. Such will be the zeal for enforcement of the police and other authorities, prioritising this prohibition alongside their duties to deal with illegal immigration and threats of terrorism, he can be confident that next year no drugs will be consumed at Glastonbury—unless, perhaps, psychoactive substances descend like manna from heaven on to the fields of Glastonbury, because that is still a possibility. Miracles do occur, and it is not impossible that psychoactive substances will continue to be consumed at Glastonbury and other festivals.

We need a realistic and constructive approach to this matter. The constructive policy is to decriminalise the possession of all drugs for personal use—to legalise, to regulate and, as we have noted in earlier debates, to have a serious campaign to inform and educate people about the realities and dangers of drugs. How helpful it would be if we could distinguish legally between the recreational use of drugs and problem usage. Through decriminalising, I believe that we could get more people, more quickly into more effective help and treatment. This is the difference between the Swedish approach and the Portuguese approach, which we discussed earlier. Decriminalisation, as recommended in the proposed new clause, would release the police from so much futile activity.

I am told that Her Majesty’s Government are spending something of the order of £1.5 billion a year on drug law enforcement. The impact assessment for the Bill, at paragraph 75, anticipates that the costs of the new measures to the public sector will be only £60,000 in year 1 and £50,000 a year thereafter. This is a joke: all the new offences created and all the enforcement activities legislated for in the Bill will cost a lot of money. We would do better to switch that expenditure and other expenditure into a real drive on information, education, youth work, healthcare through Public Health England and doing very much better about drugs in prisons.

Should we be condemning or should we be helping? In our society, there is no consensus as to whether the use of drugs is a crime, a vice, a weakness, an illness, an adventure, an act of rebellion or a recreation. It is all these things to different people at different times. But if we cease treating it as a crime, we will, as I have said before, greatly reduce the alienation of so many young people from politics and government, and we will be better placed to help people in need.

The noble Baroness, Lady Meacher, asked me to convey her apologies to the Committee that she is unable to speak to her Amendment 46. She has had to go because she is hosting a reception for Leonard Cheshire Disability, which is being attended by the Secretary of State. I beg to move.

[Lord Paddick]

My Lords, I rise to support Amendment 39 and to speak to Amendments 45 and 52, which are in my name and that of my noble friend Lady Hamwee. I agree with some of the remarks made by the noble Lord, Lord Howarth of Newport. However, I got a touch of déjà vu because I think I made out the case for the decriminalisation of drugs when I spoke to Amendment 23. I will not go over that again.

Amendment 45 clarifies the offence of intentionally importing a psychoactive substance under Clause 7(1)(a) to exclude the importation if it is,

“for the person’s own consumption”.

Amendment 52 makes a similar change to the definition of “prohibited activity”. It would amend Clause 11(1)(d) to read,

“importing such a substance other than for the person’s own consumption”.

As we have heard, the Government do not intend to make possession of psychoactive substances under this Bill a criminal offence. This Bill is targeted at those who supply such substances. While it is therefore reasonable and logical for the importation of such substances for sale or supply to also be an offence, it seems disproportionate to make importation solely for one’s own consumption an offence.

What will happen if this Bill becomes law is what happened in Ireland when similar provisions were enacted. People who currently buy their psychoactive substances from head shops will instead buy them from street drug dealers or, more likely, buy them online. Under this Bill, the police will be able to close down UK-based websites, forcing users to buy their drugs from websites overseas. When they buy their drugs from such websites, they will be guilty of importing psychoactive substances, even if their only intention is to consume the drugs themselves. It seems inconsistent for the Government not to criminalise possession of psychoactive substances under this Bill but still to criminalise people for trying to possess them in this way.

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[Lord Paddick]

My Lords, Amendment 51 stands in my name and the names of my noble friend Lady Hamwee and the noble Baroness, Lady Meacher. It would allow the Secretary of State to make regulations to license people and premises to sell low-risk psychoactive substances after consultation with representatives of the police, local authorities and small businesses.

The Government, in their background briefing to the Bill, acknowledge that some so-called head shops are well run and that the owners or managers of these premises make every effort to remain with the law and to conduct their business responsibly. We maintain that were all head shops to disappear, as happened when similar legislation was enacted in Ireland, users would resort to far more dangerous suppliers, such as street drug dealers and overseas websites. There is a real danger that the complete disappearance of head shops would result in more deaths from new psychoactive substances. Together with other amendments already debated, this amendment would allow low-risk psychoactive substances that have been exempted from the Bill to be sold to adults only, in closely regulated premises, by fit and proper licence holders.

We had a discussion this afternoon about how alcohol is very closely regulated. We are saying that, through this amendment, other low-risk psychoactive substances could be regulated and controlled. The overall effect of these changes would be to keep users from being driven into the hands of criminal suppliers and unregulated websites. I beg to move.

[Lord Howarth of Newport]

My Lords, I support this amendment. I think it is going to be very difficult in practice to implement the kind of regime that the noble Lord and his cosignatories call for, but I share his view that it may well be of much more questionable benefit than the Government suppose to close down the existing head shops en masse. I suspect that they vary very much in terms of the responsibility with which they deal with their clients but am pretty sure that, as the noble Lord, Lord Paddick, said, there are head-shop proprietors and staff who take a responsible view of the risks that their clients may run and the desirability of ensuring that they do not come to harm. It is very difficult to know how to prevent anyone coming to harm, not least because it is very difficult to identify the exact nature of the substances sold, even for the head-shop importers and proprietors, and there is not the evidence to tell us about the long-term effects of the use of new psychoactive substances.

However, I agree with the noble Lord, Lord Paddick, that there is a lesser danger in this than there is in consigning the users of new psychoactive substances to street dealers and to online sources based outside this country operated by people who have no scruples at all. The consultation process that the noble Lord has proposed would be problematic, because people in the neighbourhood of head shops tend not to like them and it would be very difficult to get local public assent to the licensing of head shops, but a responsible local authority ought to undertake that kind of exercise.

I was very interested to note that, in the briefing from the Local Government Association on this amendment that I think we have all received, it makes some very practical points:

“We would oppose councils being made responsible for licensing because of the difficulties in assessing if a product is of low overall risk. Unless there was a full scale testing and risk assessment regime in place covering health and other risks the safety of a product could not be guaranteed”.

It is absolutely right about that, which is one of the reasons why, on another amendment, I have argued for the provision of a network of testing facilities. We ought to aim at that. We should encourage responsible conduct by people who would seek to supply psychoactive substances to the market in this country. There is evidence that many people operating cannabis cafes in the Netherlands for example, particularly because they are under pretty close police and other supervision, take good care to ensure that the products that they offer are relatively safe and that they guide purchasers to buy the products that may be least dangerous and least unsuitable for them. One might even say, for those who favour the taking of cannabis, it is positively suitable for them—but I am neutral on that point. We have all the time to think practically and realistically and, in tabling this amendment, noble Lords are doing just that.

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[Lord Paddick]

I thank the Minister and other noble Lords for their contributions. The noble Lord, Lord Howarth of Newport, talked about having received the LGA briefing on this amendment. Regrettably, we have not received it, which puts us in a slightly difficult position in commenting on it. However, from what I have heard in the Chamber this afternoon, there seems to be some confusion over what the amendment is proposing. It proposes that local authorities license people and premises but the decision on which substances can be sold—that is, whether something is a low-risk substance—would be agreed by the Secretary of State, who would then put that substance on the exempt list. We have debated what “low-risk substance” means or could mean on a previous amendment. Our Amendment 22 offered a definition of “low overall risk” taken precisely from the Misuse of Drugs Act. What a low-risk substance is and how you define it is a separate debate.

I am grateful to the noble Lord, Lord Blencathra, for raising this new research. Again, it is difficult to comment without having read it, unlike the Minister. However, it sounds as though the surveys were conducted in a treatment centre for young people. The difficulty, as I have mentioned, is that when substances are made illegal people are very reluctant to come forward to seek treatment because those substances are now illegal, whereas previously they were legal and people had no qualms about coming forward.

Last week we offered the House the chance to have an independent, objective review, not only of the operation of the Misuse of Drugs Act but of what is happening in Ireland. It is very difficult for us in Committee to decide which side of the argument we come down on when there appears to be completely conflicting evidence of what the effects of the Irish ban are.

As to one thing I am more certain about, the Minister talked about the rejection of the New Zealand model. I understand that the problem with that model is that the suppliers of new psychoactive substances have not been prepared to put up the money to have their substances tested to the extent that they need to be to be approved. That is why the New Zealand model has run into the ground.

[Lord Howarth of Newport]

There have also been difficulties because of objections to testing on animals.

[Lord Paddick]

I accept that testing anything on animals is another very contentious issue. However, it is not right to say that the New Zealand model, whereby the door has been left open to allow people to have substances tested to see whether they are low risk, has been rejected, other than on commercial grounds by the people who are producing them.

Having said all that, I am very grateful to the Minister for his explanation. I beg leave to withdraw the amendment.

Psychoactive Substances Bill [HL]

Debate between Lord Paddick and Lord Howarth of Newport

Tuesday 30th June 2015 Lords Chamber

[Lord Paddick (LD)]

My Lords, Amendment 87A concerns the power to stop and search. I shall speak also to Amendment 94A, which concerns the power to seize and destroy substances. They are both probing amendments to try to understand why the Government feel it is necessary to include these powers to stop and search.

Originally we focused on Clause 23, which is about failing to comply with a premises order or a prohibition order, but, on reflection, similar arguments would apply to Clauses 4 and 8 in that the power to stop and search is supposed to be on the basis of suspicion that a person has committed, or is likely to commit, an offence under those clauses. These are criminal and arrestable offences. If a police officer or a customs officer suspects that a person has committed either of these offences, they would have a power under common law to stop and search that individual, having arrested them. My question to the Minister is: why is there a need for a separate power to stop and search when there is already a power under common law to do that?

Amendment 94A concerns the power for the police to dispose of seized psychoactive substances even where an offence has not been committed. Clause 46(1)(c) states that if an officer reasonably believes that an item is a psychoactive substance it can be seized and destroyed. My question to the Minister is, surely it needs to go beyond what an officer reasonably believes, otherwise legal substances could be destroyed by the police, with no comeback for the owner of the substances, simply on the basis of an officer’s reasonable belief about those substances that is not well founded and is not factual. I beg to move.

[Lord Howarth of Newport]

My Lords, my amendment in this group seeks to introduce a new clause after Clause 35. Again, it is on the subject of stop and search and, like the amendments of the noble Lord, Lord Paddick, its purpose is to probe.

The Committee should be told what the Government’s policy on stop and search is. In April last year the Home Secretary announced that she intended to introduce a comprehensive package of reform of police stop-and-search powers. She had been informed by Her Majesty’s Inspectorate of Constabulary that a quarter of a million stop-and-search operations—or some 27% of street searches—in 2013 had been illegal. In the other place she said:

“I want to make myself absolutely clear: if the numbers do not come down, if stop-and-search does not become more targeted, if those stop-to-arrest ratios do not improve considerably, the Government will return with primary legislation to make those things happen”.

She went on to say:

“nobody wins when stop-and-search is misapplied. It is a waste of police time. It is unfair, especially to young, black men. It is bad for public confidence in the police”.—[Official Report, Commons, 30/4/2014; col. 833.]

The Home Secretary noted that black people were still seven times more likely to be searched on the street than white people, which had been seen as “sharply divisive” in Britain’s black and minority ethnic communities. She might also have noted that in 2013, white people were twice as likely to have taken drugs in the previous year as black or Asian people.