Psychoactive Substances Bill [HL]

Debate between Lord Tunnicliffe and Lord Howarth of Newport

Tuesday 14th July 2015 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, the noble and learned Lord, Lord Mackay of Clashfern, hit on the essence of the Bill at the beginning of his contribution. It takes a different approach from the Misuse of Drugs Act 1971, because of the speed with which these new products are coming into our society. We all at least agree that their impact is one of tremendous and peculiar harm. The Labour Front Bench supports the Bill and the essential concept behind it. We had a manifesto commitment to address legal highs and we approve of the device used, which is a wide definition with exceptions. That is the difference between the two sides in this debate. We therefore, as a generality, oppose the narrowing of definitions, as that would go to the essence of how the Bill is designed to work.

Amendment 1 would narrow the definition to “synthetic”, which would potentially exclude a large group of naturally occurring substances. Amendments 2, 5, 6, 8 and 9 all seem to be about the same concept, with the same words used over and over again, as in Amendment 2, to limit the definition to,

“any drug which is, or appears to the Advisory Council on the Misuse of Drugs to be, misused and of which the misuse is having, or appears to the Advisory Council on the Misuse of Drugs”—

here we get to the key words—

“to be capable of having, harmful effects sufficient to constitute a social problem”.

Those ideas would drive right through the concept of the Bill and reverse its essence, meaning the psychoactive substance would first have to be proved harmful. The Bill is poised the other way round: if the substance is psychoactive, it is presumed to cause harm and is illegal under the Bill unless exempted.

The wording and framing of those amendments seems also to leave out the concept of self-harm, which the Bill seeks to address. It certainly takes out the more complex issues of harm such as dosage, volume, et cetera. We therefore cannot support those amendments.

[Lord Howarth of Newport]

I am very grateful to my noble friend for giving way. How does he deal with the objection raised by Professor Iversen and his colleagues on the ACMD in their letter of 2 July? The professor warns that:

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

He goes on to say how difficult it would be to demonstrate in court that a particular substance was indeed psychoactive. He also says:

“It is almost impossible to list all possible desirable exemptions under the Bill”.

Are those two objections not very serious ones to the legislation? What is my noble friend’s response to Professor Iversen?

[Lord Tunnicliffe]

My Lords, I thank my noble friend for that intervention and hope to respond to it, at least in part, as I progress through the points I am making.

Amendment 7 would delete the definition in the Bill and would hence create the opposite effect from the one that we wish to pursue. For those reasons, in general we oppose these amendments. But—and it is an important but—we have become increasingly concerned with the operation of the Bill. What will happen? The concern that was building up and which came out on the first day in Committee was about how it will work operationally. It is of particular concern because the Bill refers specifically to the “balance of probabilities” and then, in other places, ends up with criminal sanctions. That is starting to feel very wrong. We challenged the Minister on this and he promised to write to me to provide reassurances about the operational aspects and the whole issue of proving whether something was psychoactive. I intend to refer to the letter that I got from the Minister. I thank him for the letter and I thank him and the team for making sure that it was copied to anybody who has spoken in the event—so anybody who has spoken in the debate so far should have a copy of the letter.

Psychoactive Substances Bill [HL]

Debate between Lord Tunnicliffe and Lord Howarth of Newport

Tuesday 30th June 2015 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, I agree with the noble Baroness. I am glad that she has tabled these amendments and made the points that she has. It does not look as if there is anything to worry about but it certainly would be very helpful to have reassurance from the Minister and some clarification. It would also be very helpful if he felt it possible to add explicitly to the Bill the amendment in the name of the noble Baroness and the noble Lord, Lord Paddick; namely, that,

“the provision of advice or information … shall not be a prohibited activity”.

We have a number of charities and organisations active in the field which simply seek to reduce harm and to protect vulnerable people. They are not proselytising for the taking of drugs but are knowledgeable about it and doing what they do with good intentions. We certainly do not want the kind of information websites that we have debated as regards previous amendments to find themselves with questionable legal status. Clarification would be helpful and if the Minister feels able to put something in the Bill so much the better.

[Lord Tunnicliffe (Lab)]

My Lords, I am sorry that the Chamber is not fuller to witness this unique moment when I agree with my noble friend Lord Howarth of Newport. I am not sure that it will happen again: it has certainly not happened before. We all take the view that well-informed education is key to drugs policy and to addressing these very difficult issues. The spirit of Amendment 54 seems quite interesting. We are very interested in how the Minister responds to it. It would be very bad if, by accident, we inhibited thoughtful education on this issue.

I cannot go all the way on Amendment 53. Certainly, I can see why we would like to make a crime of assisting. Encouraging, once again, gets into worrying territory. I will listen to the Government’s response with great care.

--- Later in debate ---

[Lord Howarth of Newport]

I, too, endorse what the noble Baroness, Lady Hamwee, proposed. There will need to be very convincing arguments from the Government as to why there should not be a right of appeal, and I have much sympathy also with what has been said on the standard of proof.

[Lord Tunnicliffe]

My Lords, just to revert to my original path, I do not agree with the noble Lord, Lord Howarth, on the burden of proof. We think that for the orders a balance of probabilities is appropriate. The only question I seek assurance on is that if any individual were to be either imprisoned or fined, it would be under the provisions in Clause 23—and my understanding is that under that clause the criminal standard of proof would be necessary. Providing that one has that assurance, we do not object to the burden of proof in the relevant parts of the Bill with respect to the order.