Psychoactive Substances Bill [ Lords ] (First sitting)
Baroness Brown of Silvertown Excerpts(9 years, 3 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mike Penning
It is a pleasure to serve under your chairmanship, Mr Howarth. I also look forward to serving under Sir David’s chairmanship. Thank you for setting out so concisely how the Committee will proceed.
I thank Her Majesty’s Opposition and the Scottish National party for being so supportive of the principle behind the Bill, on which there was extensive discussion in the other place. One area that was discussed extensively in the other place is the use of psychoactive substances in prisons and other custodial places. The Lords sought to address the issue by amending clause 6 to make the supply of psychoactive substances, and offers to supply psychoactive substances, on prison premises a statutory aggravating factor. On reflection, we are content with the Lords amendment, not least because the governors and the Prison Officers Association support making possession a specific offence.
We also support the Lords amendment following the campaigning by my hon. Friend the Member for Winchester and the hon. Member for Barnsley Central (Dan Jarvis), who has spoken to me privately about this matter on more than one occasion—I can see the shadow Front-Bench team nodding. He really understands the matter and has been campaigning on it for many years, and it would be inappropriate if we did not acknowledge that.
I am pleased that my hon. Friend the Member for Winchester is a member of the Committee. He knows all too well that the substances are a dangerous and pervasive problem in prisons and other secure estates, not only for prison officers but for other staff and prisoners. Having reflected on the Lords amendment we are content to retain it; Government amendment 7 simply makes some drafting improvement so as to ensure that the measure is tight and, in particular, to provide a definition of a custodial institution.
We have concluded, however, that we need to go further, with new clause 2 introducing a new offence for a person who is in possession of a psychoactive substance in a custodial institution. I think everyone agrees that the use of psychoactive substances needs to be addressed, and it is not about just prisoners; it is about other staff who may, sadly, wish to bring such substances on to the premises, and visitors. The safety of visitors, prisoners and staff is, of course, paramount.
The introduction of a possession offence in prison would enable the police and the Crown Prosecution Service to pursue cases of prisoners, visitors or staff being found with small quantities of psychoactive substances in prison, and would support the stance that psychoactive substances are not to be tolerated in prison. The measure is fully supported across the House, by all the experts and panels, and within the Prison Service and other custodial suites. The measure concerns not just prisons, but any form of custody, particularly immigration detention centres and youth detention centres. I hope that in that way, along with the help we have had from the Lords, a simple case will be made about the possession of a psychoactive substance in prisons and other custodial centres, as opposed to in the community where it is not an offence. That is needed, to make a difference. We have listened carefully, and that is exactly what we will do.
Lyn Brown (West Ham) (Lab)
Mr Howarth, I look forward to serving under your chairmanship and receiving your guidance. This is my first outing as a shadow Minister on a Bill, and I know that I am sitting under two experienced Chairs who will make my life so much easier than it might otherwise have been. That is a plea, in case you had not worked it out.
As I made clear during my speech on Second Reading, we support the Bill’s principles and general approach. The 2015 Labour manifesto included a commitment to ban the sale and distribution of dangerous psychoactive substances. A blanket ban with listed exemptions appears to be the most effective means of beginning to tackle the serious public health problems that the drugs have brought about. During the Committee stage, we will look at the weaknesses in the drafting of the Bill, and will table amendments to try to improve it. I hope that the Government take our critique and suggestions in the constructive manner in which they are intended. We want to work with the Government, through the Committee, to make the Bill as effective and robust as possible.
The Government have elected to insert a new clause into the Bill, which will make it an offence to possess a psychoactive substance in a custodial institution. The new clause amends clause 1, which is consequential on the new offence. The Bill already contains offences of supply, and of possession with intent to supply, psychoactive substances, which apply to prisoners and staff as much as to the rest of the public. The new clause makes it an aggravating factor to supply such substances in or around a prison, meaning that the only new power would be the ability to further punish those involved with psychoactive substances. Although I share the Government’s concern about the problem of such substances in our prisons, I am not convinced that we lack enough statutes to bring charges against prisoners, staff and visitors.
I also assume that many of the prisoners in possession of and taking psychoactive substances in our custodial institutions are likely to be addicted and are possibly in prison because they needed to feed their habit. It would perhaps be better to treat such instances as a health issue rather than one of enforcement. As I have said, the Bill already contains offences of supply and possession with intent to supply in or near a prison as an aggravated offence, so I am not convinced that the addition of possession is necessary.
As I said on Second Reading, I am concerned by the findings in the prisons and probation ombudsman’s report of July of this year that new psychoactive substances had been a factor in at least 19 prisoner deaths between 2012 and 2014. Her Majesty’s inspectorate of prisons’ annual report was just as concerning. It found that the availability of new psychoactive drugs has
“had a severe impact and has led to debt and associated violence.”
New psychoactive substances are undoubtedly a real problem for our prisons, which I am sure is what motivated the Minister to table the amendment. However, neither of the reports asked for legislation to help deal with the problem. Indeed, the drugs that the reports mention as causing problems, Black Mamba and Spice, are already controlled by the Misuse of Drugs Act 1971, meaning that possessing the most problematic substances in our prisons is already a crime. In addition, the Prison Service already has powers to discipline and punish prisoners for possessing psychoactive substances though prison rules.
Both reports stress that better detection mechanisms for new psychoactive substances need to be in place. HMIP stated that many new psychoactive substances do not show up in mandatory drug tests, making it difficult for prison officers to know what they are dealing with and the scale of the problem they face. Too few drugs tests are taking place, due to inadequate staffing. The prisons ombudsman highlighted that the sniffer dogs used by prisons to detect drugs often could not identify new psychoactive substances, and that it was still waiting for X-ray body scanners to detect substances concealed in body cavities.
I understand that the prevalence of Spice in prisons can be high. Will the legislation have a deterrent effect? Is it practically possible to enforce, or will it be like handing out speeding tickets at a grand prix? Will the Minister explain what prompted his desire to introduce criminal sanctions for possessing a psychoactive substance in a prison? Does he genuinely feel that the prison system has enough resources to tackle the direct supply and demand of such substances? It does rather feel that the amendment has been tabled out of a desire to do something about the problem in our prisons because the Minister and the Government have not been able to do the right thing, which is to address the staffing and resources issues raised by HMIP and the prisons and probation ombudsman.
During my Second Reading speech, I stressed that we have to reduce supply and demand for such drugs, meaning that we need to focus on education, including education for prisoners and, I suggest, their families. The Minister’s letter to the Chairs of the Committee states that the new offence provided by this amendment will complement the work of the National Offender Management Service to
“educate prisoners, staff and visitors.”
Will the Minister update us on what changes the Home Office and the Ministry of Justice have made to the drug education strategy since July, which is when the prisons and probation ombudsman report recommended that the Prison Service should put in place a specific education programme about the dangers of psychoactive substances?
In conclusion, I am unconvinced that the new offence would provide any useful tools in tackling the problem of novel psychoactive substances in our prisons. It is already against prison rules to possess a psychoactive substance. It is also against the law to possess Black Mamba and Spice—the NPS that currently cause the most damage in our prisons. They are already banned. Custody professionals seem clear that the priority needs to be ensuring that prisons have the resources to deal with these substances and to educate their staff and prisoners. I think that makes sense and I agree with them.
Steve Brine (Winchester) (Con)
Unsurprisingly, I support the Government amendment. I will let my right hon. Friend the Minister answer directly the points made by the shadow Minister; I just want to make a couple of comments.
As I said in my Second Reading speech last Monday evening, there is unquestionably a huge problem in the secure estate. I referred to the work of RAPt—the Rehabilitation for Addicted Prisoners Trust. Before the debate, that excellent organisation sent hon. Members a research briefing, “Tackling the issue of New Psychoactive Substances in prisons”. It lays the situation out pretty starkly. As I did not last week, I will not pull my punches now. RAPt says that NPS use has quickly become widespread among prisoners. The annual report from NOMS affirms that increased NPS use among prisoners is generating high levels of debt, intimidation and violence between prisoners and is likely to be the main catalyst for the recent rise in attacks on prison staff. I will come on to my constituency experience of that in a moment. RAPt says on the scale of the problem:
“The number of prisoners using NPS varies across prisons”—
across the estate—
“but some estimates suggest as many as 60% to 90% of the prison population use, or have used, NPS.”
As the shadow Minister said, Spice seems to be the NPS of choice at the moment. It is also known as Black Mamba—I cannot ever say that without smiling—or Clockwork Orange. Some of the quotes in the report by RAPt are shocking. They include the following:
“Prisoners who had used Spice described it as being ‘like a crack addiction’ or ‘like cannabis, just a lot stronger’…Others have seriously injured themselves head-butting mirrors thinking they were being attacked…One prisoner had witnessed ‘someone bury a knife in someone’s neck [on Spice] ’cause they were paranoid’…There is also a game that is becoming popular in prisons”—
this has been reported to me—
“It is often called the…50 pound challenge. In the game, prisoners are challenged to smoke £50 worth of Spice. If they manage to smoke it all before breaking down or passing out, then they get it for free. If they fail they have to pay for it.”
We can see how this is becoming the new currency in prisons. When I first started going into prisons for my work on the Justice Committee and in my constituency, tobacco was the currency, but without question NPS are becoming the currency. I have Her Majesty’s Prison— and young offenders institution—Winchester in my constituency. As I said on Second Reading, Dave Rogers, who is a very good governor, is struggling to deal with the effects of Spice at the moment inside Winchester prison. He told me that last month there were three ambulances on the estate at one time for three prisoners who had taken NPS in the exercise yard and were unconscious. That is gravely concerning to me.
The shadow Minister says that we currently have powers. Under the Bill, simple possession of a psychoactive substance in the wider community is not criminalised, but the Government have rightly concluded that the problem is such that it requires a different approach in the context of the secure estate because it is particularly destructive there. All my experience of working inside and outside prisons is that control and order is fundamental to prison life. When that breaks down, we have anarchy and people unfortunately die. People are dying in prisons at an alarming rate. There are many and varied reasons for that, but they are dying under our care. The state is their guardian and they are dying under our care.
I completely agree with and want to restate this point made by the Minister in his letter to us:
“The introduction of a criminal offence for possession…in a custodial institution would complement the continuing work by the National Offender Management Service to educate prisoners, staff and visitors about the harms caused by psychoactive substances and…enable firm measures to be taken to punish those who possess psychoactive substances in prison.”
The shadow Minister is right to say that at the moment there is an offence that can add 42 days to an offender’s time in custody. [Interruption.] I think that the Minister agreed from a sedentary position. However, this measure takes that on much further and sends a much clearer message.
Lyn Brown
I completely agree with everything that the hon. Gentleman has said. I want to ask him, however, about education. If we are going to deal with individual prisoners for possession rather than supply—pushing—I am absolutely with him, but surely education and treatment would be more beneficial to not only the prisoner but the community at large.
Steve Brine
I was just about to come on to that; the shadow Minister is a visionary. I want to have my cake and eat it too; I want to strengthen the law in this area, but the wider challenge, as the governor at Winchester prison said to me, is that the debate today is not only about making NPS illegal and changing the law on possession in prisons. In my experience, prisoners will always want to use illegal substances. They will always want to get “loaded”, as I said on Second Reading, whether that be through a class A drug, a class B drug or NPS.
Mike Penning
The Government made a commitment in the other place during the Bill’s passage there to review the existing exemption for research activities and to strengthen it. That commitment was important and we shall push forward with it now, as we would all agree that bona fide research is a vital area. In doing so, we are following the consultation of the Academy of Medical Sciences and others, and we are confident that this exemption is necessary, sufficient and robust.
The new schedule also provides an exemption for healthcare-related activities, which I think we would all support. That is obviously very important. We do not want to make a problem for individuals. We see that this exemption has a complement in the exemption of medical products in schedule 1. In providing the new exemption we are going for a belt and braces approach, and we fully accept that that is what we are doing. I think that is very important.
New clause 3 enables the Home Secretary to add and vary a list of exempted activities in a new schedule. This regulation-making power replaces that in clause 10 of the Bill which covers the same ground, so we will effectively be removing clause 10 and replacing it with new clause 3. In the light of what we have seen in the other place, we felt that that is important. When we get to clause 10, obviously we will not move it. Hopefully we can move on, because I think this is an agreed part of the Bill. It is important that as different substances become available, the Home Secretary has the powers to add to and vary the list.
Lyn Brown
Government amendment 2 is consequential on later Government amendments, providing for exceptions for medical and academic research. One of the concerns raised by the Advisory Council on the Misuse of Drugs was about the impact of this legislation on legitimate scientific work. As the ACMD made clear, in the original drafting there was an exemption for clinical trials but no mention of exemption made for laboratory research in academia or industry.
The Academy of Medical Sciences also wrote to the Home Secretary to raise its concerns. An example picked out by the AMS is that the Bill could criminalise neuroscience researchers using psychoactive substances as experimental tools to help us better understand the causes of some mental illness. Several Members of the House of Lords raised that as an issue prior to Report in that place. Lord Rosser, who led on the Bill for Labour in the House of Lords, highlighted on Second Reading that it is of vital importance that the Bill does not
“inhibit or restrict important medical research that will help us to improve our knowledge of drugs and their impact”.—[Official Report, House of Lords, 30 June 2015; Vol. 762, c. 1964.]
I thank Lord Rosser for highlighting that, and for seeking assurances from the Government that the original clause 10 of the Bill will not inhibit or restrict legitimate research by the terms of the Bill. I also thank him for emphasising the need for procedures relating to medical research to be made exempt under the Bill. Without his diligent work, the Government’s new clause, which deals with many of the inadequacies of the original drafting, may not have been possible.
I also thank my hon. Friend the Member for Denton and Reddish, who spoke passionately on Second Reading about the need for clearer exceptions for medical research. He was absolutely right to raise concerns that the vague definition of psychoactive substances in the Bill will impede legitimate research.
Andrew Gwynne (Denton and Reddish) (Lab)
It is a pleasure to serve under your chairmanship, Mr Howarth. I am grateful for my hon. Friend’s flattering remarks. The United Kingdom is a world leader in research of this kind. Does my hon. Friend share my concern that the unintended consequence of parts of the Bill may be to inhibit some of that research? We need to ensure, therefore, that the Bill is absolutely tight, so that that research can continue.
Lyn Brown
I certainly agree. On Second Reading, my hon. Friend said:
“Would it not be a tragedy if the United Kingdom, one of the leading research nations in the world, avoided finding a cure for some awful psychiatric disorder due to our failure to include the appropriate exemptions for scientists?”—[Official Report, 19 October 2015; Vol. 600, c. 779.]
Thanks to pressure exerted on the Government, Lord Bates, who led the Bill through the Lords for the Government, wrote to Lord Rosser and other peers to state that the Government were actively considering the issue and were in discussion with the ACMD. He pledged that the Government would table amendments addressing concerns about medical research during the Commons Committee stage. His colleague, Baroness Chisholm of Owlpen, stated that the Government have no intention of stopping “bona fide research”. I am glad that the Government listened to Labour’s concerns and have delivered on Lord Bates’s promise by introducing a new clause that will specifically exempt academic activities. I absolutely support the amendments.
However, I cannot help but feel that the Government could have avoided the need hastily to draft the amendments and table some significant information if they had properly consulted the ACMD before they produced the first draft of the Bill. This has been a very quick—I would not say rushed—Bill. We had Second Reading in the Commons a week ago and here we are in Committee, and there are still issues that are yet to be completely ironed out in Committee to make the Bill enforceable in our courts of law.
We need to take into consideration organisations such as the ACMD, which consists of leading experts on drugs, many of whom work in academia. If they had been consulted on the original draft of the Bill, they would undoubtedly have spotted the problems with the Government’s original plans. The amendment could have been in the Bill from the beginning, and parliamentary time could have been spent more productively in looking at the goals of the Bill and how well the Bill will help the Government to achieve them.
Mike Penning
At the outset, I want to say that legislation is passed in Parliament by introducing a draft Bill, which is then scrutinised. I welcome the scrutiny that took place in the Lords. The reason why the Bill started in the Lords—this is probably above my pay grade—is that there are so many genuine experts there. Perhaps if it had started in this House the same amendments would have been introduced by colleagues on both sides of the House. I do not mind that; colleagues who know me well enough know that I am pragmatic.
I have a couple of points about the shadow Minister’s comments. This should have been done years ago under previous Administrations—I think we all know that. For every day that we do not do this, people are dying. I accept that it is rushed, to a degree—there was a huge gap between the Bill being in the Lords and coming to us—but it is right and proper for this House to expedite the Bill, while doing everything possible about any anomalies that generally concern groups of people, in particular on the research side. If there were any such anomalies in the legislation, I would let no one prevent us from changing things. That is why we have tabled the amendments. Unashamedly, I have already mentioned belt and braces. If we need to amend things further as we go on, we will do so, so that we do not prevent research in such an important area.
I wanted to touch on the scrutiny work done in the other House. I sat in on the debate on Second Reading and Report, on the steps of the Throne—it is a great honour to be able to do such things—and it was fascinating. One group of people was fundamentally opposed, as in our House, but it was a tiny group. We got around bits such as “Will this affect people in churches with incense?” and, once we had got rid of that stuff, we could actually ask, “Does the Bill do what it says on the tin?” and “Does it allow the research to continue to take place?” which is absolutely vital. New clause 3 would improve the Bill, and that is why we can take out clause 10. That is because we were listening, and this is the way forward.
Amendment 2 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Lyn Brown
I fear the clause gives rise to three issues, which it is important to consider. The first concerns the intended scope of the Bill and how it has apparently widened with Government drafting. The second issue is how the state can prove that a substance is psychoactive, particularly when seeking prosecution. Our amendment is based on language recommended to the Home Secretary by the ACMD, which offers a new definition of a psychoactive substance. We believe that the ACMD’s language may provide a better response to these issues than the current drafting.
The final and related issue is that we need to know whether we have the necessary resources in place to test for psychoactivity. The Committee will be aware that one concern that the ACMD raised about the drafting of the Bill is that it refers merely to psychoactive substances, whereas in previous discussions of the problem—including the impact assessment for the Bill and the expert panel report, which recommended the approach taken by the Government—the words “psychoactive substance” have always been prefixed by the word “novel” or “new”.
According to the ACMD, the prefixes of “new” or “novel” indicate that we are referring to substances that have been produced in order to mimic the effects of controlled substances but currently sit outside the controls of the 1971 Act. The ACMD is concerned that, by excluding the words “novel” or “new”, the Bill has expanded in scope beyond its intended target and is now disproportionately broad.
The Home Secretary has written to the ACMD and indicated that she thinks that the inclusion of the words “new” or “novel” in the Bill would be unworkable, as that would suggest that substances that existed before the Bill came into place ought not to be controlled. She also pointed out that many of the NPS that we want to control are not new, in the sense of being newly created; it is just that they have only recently been used for recreational purposes. For example, mephedrone was first synthesised in 1929 and “forgotten” until it was rediscovered in 2004. Its use became widespread around 2007.
However, on Lords Report, Baroness Meacher proposed that the word “synthetic” be inserted before “psychoactive substances” in order to restrict the Bill to its intended scope of drugs synthetically designed to mimic existing drugs.
On 17 August the ACMD wrote again to the Home Secretary with a series of recommendations of how the definitions in the Bill could be tightened. One recommendation was to include a definition of substance in the Bill to include the word “synthesis” and specifically to mention an effect that has a pharmacological similarity to drugs controlled by the 1971 Act. That would, it argued, cover the intended scope of the legislation.
On Friday, the ACMD wrote once again to the Home Secretary and reiterated that its recommendation was that language be used that invokes pharmacological similarity to drugs controlled by the 1971 Act. Our amendment is based on the language recommended by the ACMD.
I am sorry that I am not able to take in the information just laid before us. I will use my lunch break to read, digest and understand it. I am a woman who did not know what poppers were until two weeks ago. It is not a feasible idea for me to listen to the Minister and the debate and take in this new information.
On Lords Report, it was argued from the Government Benches that adding the word “synthetic” would be inappropriate as there are organic substances such as salvia and kratom that are both psychoactive and harmful and ought to be controlled. In the Home Secretary’s letter to the ACMD she makes a similar argument. She suggests there are substances that have long been tolerated in the absence of a more comprehensive legal framework, yet have known harms.
If these organic substances have known harms, will the Minister tell us why they cannot be controlled by existing powers in the Misuse of Drugs Act? After all, it is surely not possible for drug producers to come up with hundreds of new organic compounds and so overwhelm the authorities in the same way as they have managed with synthetic substitutes. The ACMD does not seem to be worried by a reference to synthesis and has said:
“The small number of problematic psychoactive natural products could be considered by the ACMD for control under the Misuse of Drugs Act 1971.”
We should take seriously the issues raised by the ACMD and look carefully at the language it recommends, so that we can be sure that the Bill targets as well as possible the problem that we all want it to tackle. Currently, there is much feeling that the definition is too unspecific and does not adequately define a psychoactive substance. Unfortunately, that could lead to a situation in which the Bill is unenforceable and open to legal challenge on whether a substance is psychoactive.
I understand that the latest letter from the ACMD to the Home Secretary, published last Friday, suggests a more objective, technical definition with reference to specific groups of psychoactive drugs. Many substances in those groups have been tested and researched and those found to be harmful have already been controlled under the Misuse of Drugs Act 1971. Including a specific list of classes or groups of substances that are associated with psychoactivity and harm, as in the Misuse of Drugs Act, makes it more likely that new related substances will have the same psychoactive capability.
On rereading amendment 43, I wonder whether two different interpretations are possible. The possible ambiguity is in what the phrase
“identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act”
might refer to. My initial understanding was that it referred to the pharmacological response or the chemical response—that is, a substance would be controlled if it produced a response identical or similar to the responses produced by substances controlled under the MDA. However, I wonder whether the phrase could refer to a compound, and so imply that a substance would be controlled if it produced any pharmacological or chemical response and is identical or similar to substances controlled under the MDA.
If interpretation one is correct, the clause captures substances according to their effect, which is what I would have expected; but if interpretation two is correct, the clause would seem heavy-handed as, in principle, it would capture a benign substance that had only a limited effect but happened to be similar to a drug controlled under the MDA. Many exclusions might then be needed. If interpretation one is correct, the approach would capture all substances the ACMD has dealt with to date. Also, I would have thought that adding an inclusion list to the definition of psychoactive drugs would make it easier to manage an exclusion list, as well as helping on the resources required for that.
The Minister will see that I am genuinely struggling on this: we all want the legislation to work, but unless the definition is strengthened and underpinned with ways of testing psychoactivity, the Bill might not result in successful prosecutions or controls. What response does he have to the difficulties I have outlined? If he will not accept the amendments, will he give this matter full consideration before Report and Third Reading?
These are not party political concerns but concerns that emanate from a desire to see this Bill have a proper effect and safeguard all our communities. I genuinely believe that we do not have this matter right as yet, because major loopholes might emerge as attempts are made to prosecute the producers and suppliers of these pernicious drugs.
I now move on to the issue of proving that a substance is psychoactive. I am sure that the whole Committee is aware that the ACMD has written to the Home Secretary warning her that we will have to rely on proxy measures of psychoactivity, such as in vitro neurochemical tests, to prove psychoactivity, and again these tests “may not stand up” in court. It could result in a very resource-intensive forensic strategy and legal costs could well rise due to the need for expert witnesses, who obviously may disagree with each other. In vitro tests—that is, tests carried out in glass test tubes—are not conclusive and some substances that seem to be psychoactive in a test tube have been found not to be psychoactive in vivo, that is in humans. A conclusive test of psychoactivity would require randomised tests on human beings for definitive proof, and obviously that is fraught with difficulties.
I suggested on Second Reading of this Bill that we should take the ACMD’s warnings seriously. There have been only five prosecutions in Ireland since similar legislation was introduced in 2010. Police in Ireland admit that one of the reasons that there have been so few prosecutions there is that it is difficult to prove psychoactivity. Detective Sergeant Tony Howard from the Irish Drugs and Organised Crime Bureau told the BBC:
“We are relying on scientists to assist us with these prosecutions and, unfortunately, they haven’t been able to provide the evidence to us.”
We need assurances from the Government that they are making good progress with the ACMD in resolving this issue. Without the credible threat of prosecution, it will be much harder to disrupt and break up the supply chains.
Amendment 43, which I remind the Committee is based on an ACMD recommendation, would define a psychoactive substance as
“a compound capable of producing a pharmacological response on the central nervous system or which produces a chemical response in vitro, identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act 1971”.
It is my understanding that one of the benefits of this definition is that it would be harder for defendants to challenge proxy evidence of a substance’s psychoactivity, because legally psychoactivity would be defined by proxy indicators. It is important that the Minister outlines why this wording would not be more legally robust than the current wording, because psychoactivity is, after all, right at the heart of the Bill.
If the definition of psychoactivity is limited to the known drug groups, we know that the resources required would be more manageable, and a series of simple biological tests could be done on known targets to indicate the drug group of a substance. According to chemists and toxicologists, this is
“run of the mill profiling”.
Thus, a library of known compounds could be built up and additional testing would only be required where the law was challenged. Leading chemists, including Professor Les Iversen, assure us that it is highly unlikely that new substances will be found that fall outside the known drug groups. If the Minister cannot accept the limitation to known drug groups, I would appreciate his telling the Committee why that is and outlining his difficulty with such a limitation.
Finally, I will move on to the issue of resources needed to test for psychoactivity. The Government will recognise that the proposals in the Bill are not immediately cost-neutral. As we have already seen, this clause gives rise to the need for neurochemical tests in order to prove the psychoactivity of substances. These tests need to be paid for, presumably both by the prosecution and defence teams in any court case. The Forensic Science Service, a public body, was abolished in 2011 and what we now have is a patchwork collection of commercial forensic science providers.
Carolyn Harris (Swansea East) (Lab)
With some laboratories charging up to £100 per test for each individual product to be tested, would my hon. Friend agree that trading standards would need extra financial resources to make any future legislation viable?
Lyn Brown
I certainly agree with my hon. Friend. The expert panel on new psychoactive substances make it perfectly clear that those forensic science providers will only take on the work if they consider it commercially viable. The state will have to pay competitive rates if it wants to test for the psychoactivity of drugs. I would like the Minister to assure us that the burden of paying for these tests will not fall entirely on the prosecution services or local government. The Bill is a radical addition to our drugs control policy and the Home Office has a responsibility to ensure that it is not acting as a drain on already depleted resources at the CPS. Local authorities and police forces may also want to test for psychoactivity before pursuing action against local suppliers. They too need support in this area.
In the Home Secretary’s letter to the ACMD she argued that data sharing in the police and forensic community would be the key factor in the forensic response to the Bill. She also pledged that the Home Office would drive for the mechanisms to ensure data is shared efficiently. I would like to ask the Minister what progress is being made on this front. We do not want unnecessary duplication adding to the expense of enforcing the Bill, nor do we want prosecutions not be brought because prosecutors do not have the same knowledge of a psychoactive substance as a police force or indeed the Home Office.
The Home Affairs Committee report on the Bill highlighted a number of concerns regarding the expenditure needed to achieve a prosecution. The Chartered Trading Standards Institute argued in its written evidence to the Committee that proving psychoactivity in order to gain prosecution would require
“rigorous scientific testing and analysis to obtain a toxicology report detailing the specific chemical components found in the drug.”
That point was made earlier by my hon. Friend the Member for Swansea East. The CTSI estimated that the approximate cost would be greater than £100 per substance to conduct a basic test. What is more alarming is that typical head shop investigations will require multiple tests to be conducted due to the content of NPS being different in different packets of the same branded drug. One packet of something exotic bearing the same name as another packet will contain different compounds. That just will not stand up in court.
Owen Thompson
A Scottish Government expert review group that reported in February this year included a recommendation that a toolkit be developed to support trading standards staff tackling NPS in our communities. Does the hon. Lady agree that it would be particularly useful to roll that out, so that we can ensure the best possible approach, consistent across the country?
Lyn Brown
The hon. Gentleman is absolutely right that data sharing across police forces is essential to ensure we get the right information and can prosecute cases where possible. Police Scotland has voiced similar concerns, stating that a successful case would require evidence from a qualified expert with experience of working with NPS who could identify the substance and prove its psychoactivity. Furthermore, Police Scotland also states that every case that involved NPS offences would require the suitably qualified medical expert to provide evidence in court, which would also incur a cost.
The critical issue in the Bill—the definition of psychoactivity—still has to be addressed, although I suppose there might be something in the letter that has been submitted to the Committee. The ACMD published further advice on 23 October and is still of the view that
“the current definition on the face of the Bill is too unspecific and does not adequately define a psychoactive substance”.
Essentially, the Home Secretary has rejected any qualification of psychoactive substances—for example, by including only synthetic products. The definition in clause 2 remains as originally drafted, without reference to harm, to which we will come later.
Much of the detail of the Government’s discussions has not been published, so the reasoning behind their position is not entirely clear to me. They have not accepted any suggested amendment to the wording of clause 2. It is unfortunate that there has been no agreement between Ministers and the statutory body of expertise, the ACMD. I fear that that risks destabilising the overall soundness and public perception of the proposals, by which I mean the ability to prosecute successfully. If the definition remains largely unchanged, there will be consequences relating to harm measurement, proportional sentencing and credible messaging. If the criminal sanctions apply equally to substances of widely different harm thresholds, that will remove the possibility that sensible and honest messages about health harms can be created.
We tabled our amendments not to be difficult or party political but to try to secure clarification from the Government on the intended scope of the Bill. We need to know that they are certain that they can legally prove that a substance is psychoactive and secure prosecutions. We want to know what provisions they have made to ensure that the necessary funds and resources are available to conduct extensive and expensive tests for psychoactivity.
Mike Penning
I thank the shadow Minister for her detailed and extensive comments, which I take in the context in which they were delivered.
I want to address some of the points that were made. The SNP spokesman mentioned the idea of a toolkit—we do not need to reinvent the wheel every time, do we? In England, local authorities, which have responsibility for public health, spend £830 million a year on tackling drug and alcohol misuse. That is 30% of the national budget, which makes it logical to address the issue.
The explanatory notes set out that the measures will be cost-neutral to the police and local authorities. Let me use some anecdotal evidence to show why. Take, for example, Belfast and Lincoln, two very diverse communities where head shops were banned using local powers. I still do not understand why other local authorities have not used those powers, but there we are. The cost and type of policing in those communities changed dramatically, without the Bill, just by banning head shops. Belfast, which I know all too well from my time as a Minister in the Northern Ireland Office, was transformed simply by people saying, “We do not want that sort of product sold in shops in our communities because people will think it is legitimate and safe.”
I understand that there are concerns, and I know that there are different views coming back from the Republic of Ireland. I went and met the Irish Minister and his scientific experts. I asked why there had been five prosecutions, and the answer was twofold, and not exactly what we have heard so far today. In Ireland, they felt that they had got the prosecutions they wanted using powers that are also in the Bill. A huge part of the Bill has nothing to do with the CPS and the police prosecuting, but is about local authorities. What happened almost overnight after using those powers was that the head shops and the industry collapsed, because people had been educated correctly. Where the local authorities were using their powers—powers that are also in the Bill—it transformed the communities in the way we would all like to see. The Bill is not designed to pick on people who have been using these products perfectly legally and, they feel, safely; it is designed to get the really bad guys—the dealers and those sorts of people. The seven-year prison sentence is in the Bill as a last resort.
In terms of applied science and technology, the Home Office will identify and bring forward the capability throughout the UK on the forensic requirement. We are going to do that. I accept that we will have to give more detail, perhaps on Report, and we are happy to do so.
I am sorry we disagree so early in the Bill, but I have real concerns about amendment 51, which runs counter to the blanket ban. If we are going to go for a blanket ban, we are going to go for a blanket ban. If we start fiddling around the edges, that blanket ban becomes difficult, so I do not support the amendment. I fully accept the fact that the shadow Minister and other members of the Committee have not had enough time to read the ACMD’s latest correspondence. Perhaps that can be addressed on Report. The ACMD understandably moves with debate, as it moves in different areas. As I said earlier, using “synthetics” in the Bill is wrong. A blanket ban is a blanket ban. We have to get ahead the game, and that is what we have been trying to do.
I fully understand why the amendments have been tabled, and that the one from the hon. Member for Midlothian is probing, but sadly at this stage I cannot support amendments 51, 43 and 44 for the reasons I have given. If more discussion and investigation is needed, the Report stage may be a better time for that. A lot of the concerns are that we will not be able to prosecute, but we will. It happens in other parts of the world and in Ireland. There were concerns about harm, but if a blanket ban happens, we are ahead of harm, rather than waiting for harm to happen and for people to die. On that basis, I hope that colleagues will not press their amendments to a Division.
Lyn Brown
I hear entirely what the Minister is saying, and I have some sympathy, but may I push him on a couple of things? The first is the issue of the definition. I did not hear him explain why we cannot use the words “new” or “synthetic”. That would give us a better focus on the things we want to ban. Secondly, I did not hear why we were not able to put the organic substances that we know to be harmful, such as salvia and kratom, within the scope of the 1971 Act. That just seems logical. We know that those substances are harmful and we know what they are. People will not be able to graft new bits on to plants to create new organic substances—certainly not at the rate at which they have managed to create new synthetic substances.
The Minister talked about costs. I used the words “immediately become cost-neutral” in my notes, but I say gently to him that while I accept that there may be savings to the local community and the local police from banning head shops, cutting the supply and getting rid of the demand from our streets, I genuinely do not believe that those savings will be immediate. I gently suggest that one reason why there have not been more prosecutions by local authorities is that they have not had the wherewithal—the finance— to know that what they are taking to court will actually stand up. There is a cost issue that we need to look at.
The Chair
If the hon. Lady has further points to make, it might be advisable to make them at this point.
Lyn Brown
My problem is that it was such a big thing that I did with three clauses that I am worried that I have missed something and I am not getting it out. I am not sure we have got to the bottom of the evidence around psychoactive substances, whether it is provable, and whether the definition that the Government are currently going with would enable provability within the court.
The Chair
I wonder whether it would be helpful to the hon. Lady, and sensible at this point, if the Minister responded to the points that she has made. If she thinks of other issues that she wants to raise, she could do so by way of an intervention.
Mike Penning
I do not want to go round in circles, as I have made the points that I would almost certainly make again. At this point I would like to make some progress. “New or novel” substances have, according to my legal team, no legal meaning within the law, which is why we are not going with that.
Mike Penning
Ireland is a much smaller country and, if we proportionally move the percentage in population up from 5%, we would see substantially more prosecutions. I am really pleased that I went to Ireland as I was amazed at the amount of work done by local government on prevention. One reason why the measure will not come into force until April is to allow what happened in Ireland to happen here. Prosecutions did take place and were not thrown out of court; the evidence base was almost identical to what we have. We are slightly tougher, but only marginally, and perhaps learning from some of the mistakes. They have said they will probably follow us and our legislation going forward, which is exactly what New Zealand and Western Australia are doing as well.
We have to be careful not to pre-empt something that might happen but which has not happened in countries where measures have been taken. I am conscious that the measure needs to be tight and a blanket ban is needed. I am happy and confident that we will have the scientific evidence and the experts out there to make sure that we can do this. Let us hope that, before the legislation comes in, and as they did in Ireland, we get into the schools, we get into local government and talk to communities, and that we get programmes out there that we will all support to make sure, categorically, that everybody is aware not only that the substances are no longer legal, but that they have definitely never been safe and, by the way, there are severe penalties for importing, manufacturing or selling these products.
Lyn Brown
I am grateful to the right hon. Gentleman for clarification on the words “new or novel”. That is the first time I have heard that they might not have a legal standing as a definition. May I push him, therefore, on the definition and ask if he is confident that the definition in the Bill will be robust enough for us to deal with provability within a court? Secondly, may I ask him to address the issue of cost?
Mike Penning
The answer to the first question is yes; I am more than confident about that. As the explanatory notes say, the CPS is responsible for the costs in prosecution terms. We do not think that will be an enormous burden. I am responsible for 43 police authorities, and the costs of policing this type of problem in our communities is huge. Public health is obviously for local authorities. I used to be shadow Minister for public health, and the cost burden is very interesting. We have seen in Ireland that the number of people who turn up to A&E has dropped dramatically. The number of people needing rehabilitation and treatment has also dropped. Those are all cost negatives.
Owen Thompson
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Clause 3
Exempted substances
Lyn Brown
I beg to move amendment 45, in clause 3, page 2, line 14, at end insert—
‘(3A) The Home Secretary must consider making regulations under subsection (2) if she receives a recommendation from the Advisory Council of Misuse of Drugs to bring forward such a regulation in respect of a psychoactive substance.”
This would enable the ACMD to proactively request that the Home Secretary consider regulations.
On Second Reading, I asked whether the Minister had considered providing credible measures for relatively harmless substances to be excluded from the controls introduced by the Bill. That, after all, is something the expert panel envisaged as a potential part of the Bill when it made its recommendation, following the Irish model. Amendment 45 would be one way of providing such measures, as it would allow the ACMD to proactively request that the Home Secretary consider adding a substance to the exempted list.
There is broad support for the Bill across the political spectrum. However, we know one concern is that it may restrict trade in harmless substances. I put it to the Committee that if people knew it was possible to make representations to the ACMD about substances they wish to exempt and for convincing and evidence-based arguments to make their way up to the Home Secretary, the Bill might have even broader support than it currently does.
As we know, the Home Affairs Committee received much written and oral evidence about the issue of poppers. Colleagues in the SNP have tabled an amendment about them and I will have more to say about poppers in that debate.
Mike Penning
I think there is a very important debate to be had on poppers. That will be the Chair’s decision when we get to poppers—however, at the present time I did not realise we were talking about poppers.
Lyn Brown
I like help, so do not stop trying to help.
I admit that I am sympathetic to the SNP’s amendment. If the ACMD, through Professor Iversen’s evidence, is suggesting that poppers pose a low risk of harm, it would be within the scope of the Bill to place poppers on the exemption list—but I am not an expert.
John Woodcock (Barrow and Furness) (Lab/Co-op)
I am a little puzzled. Perhaps the shadow Minister or members of the SNP might be able to shed light on this. Why, exactly, is the Scottish National party putting forward amendments about poppers that would, presumably, have an effect in England but not in Scotland itself?
Lyn Brown
When we get to poppers, experts will need to assess the evidence and decide whether the case for exemption has merit. If I may link this to our discussion on the second clause of the Bill, we know that there will be significant costs in testing the psychoactivity of substances, as there will be for enforcement measures contained within the Bill. By introducing a charge on applying for exemption, the Government potentially could raise the revenue and ensure that what is left of the industry pays for its own regulation. Does the Minister think that there might be scope for that?
While we are discussing exempted substances, I want to raise a concern that is pertinent to schedule 1. Paragraph 1 of schedule 1 exempts those drugs that are controlled by the Misuse of Drugs Act 1971 from the scope of the Bill. That is appropriate, because we do not want suppliers of drugs that we know to be very harmful being subject to the lesser tariffs contained within this Bill, rather than those in the 1971 Act. As the Home Secretary herself has stated, the 1971 Act must remain at the apex of our legal controls, and this Bill ought to be considered as complementary.
I want to press the Minister to ensure that part of this legislation will not slow down the process by which NPS we know to be harmful are brought under control through the Misuse of Drugs Act. It seems that there is a danger that the impetus for action will be lost, given that this Bill will provide some measures of control of new psychoactive substances. I do not want to see a time gap between a dangerous drug hitting the market and finding its way on to the controlled substance list as a result of this legislation—particularly given the lower tariffs contained within this Bill for supply. My worry would be greatly eased if the Minister resolved to ensure that this issue is included in the Home Office’s statutory review of the Bill.
In conclusion, the capacity to exempt substances from the controls introduced by this Bill is clearly central to the Bill’s receiving widespread support. The focus of the Home Affairs Committee report on the issue of poppers has already made that clear. I hope that the Minister will give serious consideration to our amendment or to other ways around the problem. I look forward to being able to offer a reassuring response to my concerns about the relationship between this Bill and the 1971 Act.
Mike Penning
The shadow Minister would have a point if not for section 1 of the Misuse of Drugs Act 1971, which allows the council—or ACMD—to issue advice to Ministers when it considers it expedient to do so. That provision is in the Act. A protocol between the Home Secretary and the ACMD allows the council to consider drug issues without any advice from us at all. That is in the Act.
Lyn Brown
Okay, but we have tried to helpfully suggest that there might be a way of making this a cost-neutral thing with the industry, proving that a substance should go on to the exemption list because it is harmless. The Bill and the public’s acceptance of it will be strengthened if harmless substances are put on an exemptions list, as we have done with incense.
Mike Penning
That was looked at extensively by the expert panel before the legislation was introduced, and it was rejected. The panel looked particularly at New Zealand, which had already introduced a licence, basically, which is what we are alluding to—to people applying for a licence—for low-harm substances. That has not worked.
Mike Penning
No one has applied for a licence and there is basically a blanket ban. The experts, who are much more expert than I am, looked at it extensively. They examined it and rejected it and were happy with the way we are moving forward. With that in mind, I am more than happy—as I suggested earlier to the hon. Member for Midlothian—to look again at that between now and Report to make sure that I am 100% comfortable with the proposals, because I understand the hon. Lady’s passion for this issue.
Mike Penning
However, at this stage I am comfortable, unless something comes forward between now and Report.
Mike Penning
Some of them are. Some of them are genuinely and legitimately people doing business, for example, selling a certain gas that is inappropriately used by other people, such as laughing gas. The Bill is specific in that area to make sure that we protect people. We cannot protect everybody who completely ignores what a label says, but if someone is selling certain products, they will get up to seven years in prison. That is why the harshness is there at that end of the scale, although I fully understand and do not want to penalise people at the other end, who perhaps take the products—in my opinion wrongly, and I am sure that everyone would agree—thinking they are safe. We do not want to criminalise that. I hope that the hon. Lady will not press her amendment. We can look at this carefully again, if necessary, on Report.
Mike Penning
I beg to move amendment 3, in Schedule 1, page 38, line 7, leave out from “products” to end of line 12 and insert—
‘“Medicinal product” has the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 2 of those Regulations).’
This amendment replaces the definition of “medicinal product” in paragraph 2 of Schedule 1. The revised definition adopts that in regulation 2 of the Human Medicines Regulations 2012, which includes, but is wider than, medicinal products for which a marketing authorisation or an Article 126a authorisation is in force.
Lyn Brown
I rise to speak to Government amendments 3 and 4, which would replace the passages on investigational, homeopathic and traditional herbal medicine in the list of exempted substances with a single wide definition of a medicinal product. Will the Government provide further detail on the exempted substances list and the forensic strategy that underpins the Bill? Some representations, including from the ACMD, have described the exemptions list as potentially unworkable, particularly if there is no inclusion list in the definition of psychoactive substances, as recommended by the ACMD. It is possible that adding an inclusion list into the definition of psychoactive substances makes the management of the exclusion list much more manageable. I would be grateful for the Minister’s view.
Mike Penning
I am really sorry if I am looking slightly puzzled, but I did not think that we were considering these matters at the moment. I will get some notes passed to me, a service which the hon. Lady does not receive. I am puzzled.
Psychoactive Substances Bill [ Lords ] (Second sitting)
Baroness Brown of Silvertown Excerpts(9 years, 3 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
I remind the Committee that with this we are discussing Government amendment 4.
Lyn Brown (West Ham) (Lab)
These amendments would replace the passages defining authorised, investigational, homeopathic and traditional herbal medicines in the list of exempted substances with the definition of medicinal products found in regulation 2 of the Human Medicines Regulations 2012. I understand that the Government feel it redundant to explicitly exempt those types of medicine because they are covered by the new definition. The explanatory statement says that these medicines will fall within the revised definition. How certain is the Minister that that is the case? One reason the Bill has had wide support is that the Government have been explicit that herbal remedies will not be controlled. We must be sure that the redrafting has not moved the goalposts. I understand there is particular concern about the Government’s lack of expertise in eastern medicines that may be deemed psychoactive.
My other concern is that the 2012 regulations appear to offer a very broad definition of a medicinal product. They state that a product is medicinal if it is
“presented as having properties of preventing or treating disease”
or administered with a view to
“restoring, correcting or modifying a physiological function”.
I am not an expert on legal drafting, but both those phrases appear to suggest that whether a product is medicinal is subjective; it depends on how the drugs are presented or viewed, rather than what they actually do. I would like further details from the Minister on that point. We do not want a product to be classified as medicinal and exempted from the Bill just because someone claims it has medical or medicinal properties.
Owen Thompson (Midlothian) (SNP)
I beg to move amendment 56, in schedule 1, page 39, line 23, at end insert—
“Miscellaneous
11 —alkyl nitrates”
This amendment seeks to implement a recommendation by the Home Affairs Select Committee that “poppers” should not be banned.
I will try to be succinct. We felt it was important to table this probing amendment following the evidence gathered by the Home Affairs Committee and published in its report last Friday. I am not looking to press the amendment to a vote, but it is something that should be taken into consideration as we move towards Report.
The Home Affairs Committee received evidence from the National AIDS Trust and the Gay Men’s Health Collective that seemed to suggest that there was no medical evidence to suggest that poppers are in any way harmful. I am not an expert so I am open to contrary arguments. In this, as in so many areas of the Bill, the amendment is trying to avoid the unintended consequences of action or inaction that might be taken.
We felt that the inclusion of this miscellaneous exemption under schedule 1 would help to prevent any such unintended consequences, such as driving these substances underground and the increasing reliance on class A and class B drugs and other things that could be far more harmful to individuals who currently use poppers. We would be keen to see further discussion on the inclusion of this very specific exemption under alkyl nitrates; however we would not be looking to press it to a vote at this stage but would look to take it forward on Report.
Lyn Brown
The amendment would specifically exempt poppers from the controls contained within the Bill. I am aware that the Home Affairs Committee, as the hon. Member for Midlothian stated, received plenty of evidence on the issue. It concluded that poppers ought to be excluded from the scope of the ban in the Bill. Organisations including the National AIDS Trust and the Gay Men’s Health Collective argued that harm from poppers was low due to the effective regulation of the compounds amyl nitrate and butyl nitrate. Not exempting poppers from the list of psychoactive substances would take the use of alkyl nitrates outside of any regulation.
Andrew Gwynne
My hon. Friend is right to talk about the health of gay men in particular. Is she as concerned as I am that one of the unintended consequences of banning poppers could be the use of harder drugs and the risk from that not only in potential mental health problems of those that are using them but also sexual health because of the heightened risk of unprotected sex and sexually transmitted infections?
Lyn Brown
I thank my hon. Friend for making that point. One of the arguments against poppers is also that it could adversely impact on the sexual health of those imbibing. That argument can be used both ways. My hon. Friend is absolutely right; the Home Affairs Committee is quite clear that if we do not exempt poppers that could lead to increased health harms.
Dr Owen Bowden-Jones, a consultant psychiatrist and lead clinician for the Club Drug Clinic at the North West London NHS Foundation Trust, stated:
“As far as I can speak as a clinician, I do not think I have ever seen anybody come through”—
our clinic
“with harms related to poppers”.
Professor Iversen of the ACMD also stated that the ACMD had not seen
“sufficient scientific evidence”
that would prove harm in the case of poppers
“to justify a recommendation under the Misuse of Drugs Act.”
He was also not aware of any growth in the use of poppers.
I had supper last night with my hon. Friend the Member for Rhondda (Chris Bryant), who told me that the long medical history of the former Member and Labour Foreign Secretary Ernie Bevin meant he took poppers around the Cabinet table quite regularly. Apparently, that was because his doctor told him he had no sound organ left in his 18-stone body apart from his feet, and the poppers kept him going.
The Chair
Order. As my son would say, that possibly falls under the category of “too much information”.
Lyn Brown
I take your advice, Mr Howarth.
Given the evidence published by the Home Affairs Committee on Friday, I am sympathetic to the SNP’s amendment, and I wonder what the Minister makes of the evidence. If the ACMD, through Professor Iversen’s evidence, is suggesting that poppers have a low risk of harm, it would be within the scope of the Bill to place poppers on the exemption list.
I repeat: it is quite clear that I am not an expert on drug taking or drugs. I hear there has been a change in the formula used for poppers, and that a trickle of new evidence suggests the new formulation causes damage to the centre of the retina. Although reports of visual loss are very rare, this underlines the fact that we need an established mechanism for approving exemptions, whereby representations can be made to the ACMD if it is believed that an exemption should be granted. Experts, not me, need to assess the evidence and decide whether the case for exemption has merit. Poppers ought to be subject to the same evidence-based process as any other drug. This debate and the discussion around poppers underlines the need for the sort of established mechanism that I called for in our debate on clause 3.
Mr David Burrowes (Enfield, Southgate) (Con)
It is a pleasure to have the opportunity to contribute to this debate on an extremely significant and welcome Bill. I plead guilty to being a member of the Home Affairs Committee, which made these recommendations. I have had a number of conversations about issues around poppers, although I have never been a particular expert or had the benefit of having dinner with the hon. Member for Rhondda to discuss the issue of poppers in any great detail. I have, however, met with a representative from the Clonezone chain of sex shops, who made the case for having poppers properly regulated and in the open, as well as Boyz magazine, which has expressed concerns. Will the Minister indicate what evidence he has received from the gay community on this issue?
I will not repeat the evidence that the Home Affairs Committee heard, as the points have been well made. The issue is recognising the present harm level. I do not want to interfere in this morning’s debate, as I was not there, but the definition in the Bill is a blanket ban. One has to weigh up the impact of an exemption of alkyl nitrates on the blanket nature of the ban and the precedent that would set.
The case that was made to the Home Affairs Committee and that has been made to me is that we are now in a position where poppers are properly regulated and controlled, not least by the gay community itself. Previous concerns about harm and abuse in relation to poppers were relevant when poppers were compounds, and there were some tragic incidents involving other drugs being combined with poppers. The gay community makes the case that as far as its activities are concerned, poppers are best in the open and not banned.
The wider issue, which has not been mentioned before, is proportionality and where the focus of the Bill is. I think we all agree that those who consume poppers for personal use—we will come on to importing and exporting in a subsequent debate—are not the main target of the Bill. At the very least, we need to look at the focus of enforcement regarding the psychoactive substances that are on the market, and we all agree that it should be on the bad people who shift their evil trade around. Even if the Bill is enacted in its present form, I suggest that those who consume poppers in their private domain will not be a particular target of enforcement activities.
Lyn Brown
Does the hon. Gentleman agree with me—I think he does, because he has said that people who consume poppers are not the target of the legislation —that we are looking at targeting drugs that do a lot of harm? I am anxious that we will spend resources going into clubs and arresting people who have poppers on them, which will look good on the stats but will not take off the streets the drugs and the people that we want to target through the legislation?
Mr Burrowes
We will have the benefit of a 30-month review, where we will be able to look at the impact of the legislation. We need to ensure that it gets on to the statute book so that it can arm the police to get out there and find the people whom we really want to focus on. I cannot believe that those with poppers will be the main focus. We can ask that question in 30 months’ time to, I hope, reassure ourselves. This debate will help with that, and perhaps the Minister will give us some reassurance as well.
How will this be dealt with practically and properly? I hasten to say that those who consume poppers have not so much to fear; it is the people who shift the new psychoactive substances around in bulk who are causing menace. I look forward to the Minister’s response, in which I hope he will outline the evidence that the Home Office has received about the harm caused by poppers, because he has expressed real concern to the Committee about such harm.
Mike Penning
I accept the point. I know exactly what it says. I beg to differ with the report and the work that was done by colleagues because of the principle of the blanket ban. If we have exemptions, what other types will be brought forward by others at other times? The principle of the blanket ban would be affected if we accepted the amendment, so I ask the hon. Member for Midlothian not to move it, or to withdraw it. Other Members may of course pursue that.
I have one final point to make. I am conscious that presumably—although we will wait for the business managers—we are not going to have a huge amount of time on Report. If we leave too much to Report, I am conscious that we might not have the time to debate the issues that we have already agreed to in the length of time available.
Lyn Brown
The Minister says that possession is not an offence. We are going to come to clauses later where I want to probe that. One of the issues around clubbing is that one person out of a group of six may well find themselves getting the poppers for the group and then doling them out to the group when they get to a club. In those circumstances, because there would be an “intent to supply”, the possession of poppers would be an offence. However, again, that is about using resources on something that has not been shown to have a harmful effect or to cause harm.
The Minister said that he wants to review, and in the review we can look at whether poppers have been particularly targeted. Can he confirm that when we get the review it will have a breakdown of which psychoactive substances action has been taken on? The issue is again that of resources. To show that action has been taken on psychoactive substances by any particular police force, it would be quite easy to take action on those who are using poppers. I want the action taken on those who are selling really harmful substances, not on the type of substances where the Select Committee’s report suggests there is no evidence of harm. Can the Minister confirm that in that review we will be able to see the types of substances that police forces have concentrated on when they have been taking action?
The Minister also talks about a blanket ban. We have a blanket ban but we also have an exemptions list. We have an exemptions list that includes incense, and coffee—I am grateful for that as I am not sure how I would have managed to get up this morning without it. When we are talking about a blanket ban, we want that to be on harmful substances—substances that cause harm, not substances that do not harm. Would the Minister consider publishing the evidence he has that poppers have entered a realm where they may well be causing harm? That would be helpful.
I think this will be revisited at Report; if not by either of the Front Benches, my guess is that there will be others who will have been moved by the letters and emails that they will be getting over the next week or so, who have perhaps been part of the Home Affairs Committee and are aware of the Committee’s recommendation that this is placed on the exemption list. Could I ask the Minister to genuinely reconsider on this issue? It is not that we are soft on drugs. We are hard on drugs and we want to be hard on the harmful drugs that could cause massive harm to many within our communities. Will the Minister take that on board?
Mike Penning
I assure the shadow Minister that in the evidence I send back to the Select Committee on that report, I most certainly will indicate the concerns that we have around harm to do with poppers.
The blanket ban is not targeted, because it is a blanket ban. It is obviously for trading standards, the police and the Crown Prosecution Service to make the decisions. When we come to the review, data will be available to ensure that we understand how the new Act is being implemented.
Mike Penning
I was just coming on to that. When the Bill was going through the Lords I expected that the matter would be debated and extensively lobbied, but it was not. I understand that it was not raised at all. I also expected my door to be bursting open following requests for meetings from the different lobby groups, but I have not received any delegations. I am slightly surprised. One of the Justice Ministers raised the matter when a group was seeing them on a separate issue. I am well aware that colleagues were lobbied when they were named as members of the Committee. However, if the matter was of such concern, I would have expected representations, but I have not had any, and I am not the shyest person if people want to see me.
That is not a criticism. It is just that the question was asked and the answer is that I have not had any representations.
Lyn Brown
I know that this is not scientific, but my Facebook pages had not included anything about the matter until the end of last week. Perhaps the Minister’s door has not yet been knocked on, but my guess is that it might be knocked on, fairly loudly, by those groups as the issue becomes more apparent and the community becomes more aware of it.
Mike Penning
I have made a rod for my own back but, as I said, my door is always open.
The news that we were going to have a blanket ban is not new; everybody has known about the ban. Several other organisations, including the Churches, were worried about this issue. It has been debated extensively within the Lords. I accept that there is now a campaign on this issue, which seems to have started quite vigorously, but during the progress of the Bill in the other place and throughout the investigations that I have carried out, it was not raised with me.
Lyn Brown
May I just say to the right hon. Gentleman that I think one of the reasons that the issue was not raised with him is that there has been an assumption that the legal highs that we are banning are the bad stuff—the materials that actually cause harm? Therefore, there has perhaps been an assumption that poppers, which do not cause harm or at least have not been considered to cause harm, would not fall within the scope of the Bill.
Owen Thompson
I would certainly welcome that approach. We have talked a lot about how we are building the Bill around the Irish experience, but I do not see any reason why we cannot look to that experience and make it better. I think that that is ultimately what we are all trying to do. I do not seek to press the amendment to a vote at this stage; I merely want us to make the arguments and discuss it, as we are doing. I will take the matter forward to Report, when we can discuss it in more detail. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1, as amended, agreed to.
Clause 4
Producing a psychoactive substance
Amendment made: 5, in clause 4, page 2, line 32, leave out from “subject to” to end of line 33 and insert “section (Exceptions to offences) (exceptions to offences).” —(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 4, as amended, ordered to stand part of the Bill.
Clause 5
Supplying, or offering to supply, a psychoactive substance
The Chair
With this it will be convenient to discuss the following:
Amendment 52, in clause 5, page 3, line 15, at end insert—
‘(5) It is not an offence under this section for a person (“A”) to supply a psychoactive substance to person (“B”), where A and B are known to each other and such supply is part of an agreement to obtain psychoactive substances for either As, Bs or both’s own consumption, and the supply does not profit person A.”
This amendment seeks to explore how to avoid one person being criminalised when as part of a group, he is responsible for obtaining psychoactive substances e.g. via the internet; when in reality each person in the group is purchasing for their own consumption.
Amendment 49, in clause 7, page 4, line 17, at end insert—
“(d) the person intends to do this for personal gain”
This amendment would mean possession with intent to supply would only be an offence if the person was supplying the product for gain.
Lyn Brown
One of the original recommendations of the ACMD was that the Home Office should redraft clause 5 to exclude social supply, and that is what our amendments are designed to do. I note that the NPS expert group, which recommended a blanket ban, also stated that social supply could be excluded from that ban. The reason for this—we were heading in this direction in the last debate—is that I am told that it is not unusual for a number of young people to club together, and for one person to buy the substances and distribute them among their friends. The crime survey for England and Wales 2014-15 found that around a third—34%—of those using NPS got them from a friend. The reality of drug experimentation, particularly with young people, is that it is social behaviour in a group. It is common for one individual to acquire the substances to be taken by the group. I am of the view that the difference between a young adult purchasing drugs on behalf of a group for an experimental night out, and a professional drug dealer peddling potentially dangerous drugs for profit, is enormous.
Mr Burrowes
I hear the point that the hon. Lady is making, but how does she make that distinction? No one has the label: “I am a professional drug dealer” on their head. I have represented a number of drug dealers, and they may well be quite young and look very innocent, but they can be guilty of supply, whether social or commercial. Either way, they are plying their evil trade.
Lyn Brown
I accept that. I am not a learned person, and I have never defended a drug pusher, so I am quite new to this. My guess is that the way we would do this is to look at quantities—to consider the amount of drugs that somebody had on them and the group of people that they were clubbing with. If I had five poppers with me and I was clubbing with another four friends, I think that that would suggest that there was social supply going on, rather than a drug dealer making a huge profit.
Mr Burrowes
Is not the point that it is about enforcement and the police being able to take a view about what they find, so that they can decide whether the evidence amounts to supply and whether they want to take prosecution further? When they are dealing with the scenario you are describing of a bunch of friends passing round laughing gas, they would have to take a view on how far they would take it. We need to have that discretion in enforcement rather than putting it in the Bill, which could have unintended consequences.
Lyn Brown
I accept what the hon. Gentleman is saying. I think he was in the cannabis debate we had in Westminster Hall two weeks ago—[Interruption.] He was not; I am sorry. In that debate, I raised the issue of equity: somebody might be done for cannabis possession in West Ham but not in West Norwood, because police forces up and down the country take very different views about enforcement in their patch. It is about the way in which they enforce these matters. For me, the law is the law. I want equity across the country in the way in which things are dealt with; I do not see why there should not be equity across the country. I hope that helps the hon. Gentleman.
The clause as drafted makes no distinction between social suppliers and large-scale commercial suppliers. The ACMD is worried that that is disproportionate, and I probably agree. I know there is an argument that social supply is an important part of the supply chain of those drugs, and therefore it ought to be included within the reach of the Bill. Although Home Office research shows that a third of NPS were obtained through a friend or colleague, other surveys of young adults who are clubbers, such as the Global Drug Survey, have different findings that show a much higher level of internet buying of psychoactive substances.
Social suppliers are at the very end of the supply chain. I hope that this legislation, which I know we are going to pass, will enable us to disrupt and break up the immoral organisations that sell drugs to social suppliers: the head shops, the internet sites and, ultimately, the drug producers. We can reduce the social supply without criminalising young people who may not even be aware that they are breaking the law. A criminal record is one of the most harmful and life-limiting penalties we can levy on a young adult. A conviction for drug possession is not well regarded by educational institutions or potential employers. A conviction for drug supply has potentially far worse consequences, as it is rightly regarded as a much more serious offence.
Without a well-funded, comprehensive education and communication programme, there will be plenty of confusion about the legal status of NPS. It will take years to completely remove the dangerous marketing misnomer of “legal highs” from ordinary language. There is bound to be confusion about drugs that are legal to possess but not to supply, import or export, if only because they are new and unfamiliar to our legal framework. The same ignorance cannot be claimed for the drug pushers, professional drug dealers and producers who are the people we really ought to be going after.
Our amendment would add “for personal gain” to the end of the clause. That is similar to the way financial gain is considered an important factor in the sentencing guidelines for drugs controlled by the Misuse of Drugs Act 1971. Those guidelines suggest that those who make substantial gains ought to be considered, for the purpose of sentencing, to have played a leading role in supply. With that careful wording, prosecutors would still be able to prosecute individuals for selling to people they happen to know for the sake of personal profit. Small-scale, local criminals could still be punished for bringing harm to their communities, but genuine social suppliers, who are ultimately the users of the drugs, rather than the people pushing them, would be excluded.
We tabled amendment 49 to clause 7 to have the same intended legal effect as our amendment to clause 5. The same principles that govern the prohibition of supply, which is set out in clause 5, should also apply to possession with intent to supply, which is set out in clause 7. I note that the Scottish National party tabled a similar amendment, which also has the intended effect of excluding social supply from the scope of the Bill. I am quite happy to work with the SNP and the Government to work out which formulation would most effectively exclude social supply without creating easily exploitable loopholes. I firmly believe that we should be working on this problem together.
Steve Brine (Winchester) (Con)
I am listening carefully to what the hon. Lady says. Is the “for personal gain” that she suggests should be inserted into clause 5 consistent with the wording that would appear in, say, the 1971 Act? Has she taken advice to that effect? I appreciate that she might not have the answer at her fingertips.
Mike Penning
The provision in the Bill mirrors the position of substances that are subject to a temporary class drug order. The Bill replicates a piece of legislation that we have been using for some considerable time. The amendment would move us away from that.
Lyn Brown
But there are other things that are moving us away from that, too. The Bill does not talk about criminalising possession, so its focus is clearly on the dangerous, nasty stuff sold in glitzy, pretty packets in head shops, which are targeted at teenagers and young adults in our communities. We might not be mirroring the 1971 Act, but we are genuinely attempting to tackle the real problem of the nasty stuff on our doorsteps. We want to get to the suppliers and get this stuff out of our communities, but we should not criminalise young people who may be completely unaware that the “legal highs” that they have been taking are in fact illegal.
Andrew Gwynne
I am grateful to my hon. Friend for giving way. She makes an important point about personal gain, because there could be a scenario in which prosecutors would still be able to make a clear distinction for somebody who is clearly profiting from the sale of a currently legal high, even if they happen to know the person to whom they are selling on a social basis. That is an important distinction that prosecutors ought to be able to make.
Steve Brine
This is where I am on this: I understand exactly what the hon. Lady says, but one could intentionally supply a substance to another person socially and it could still be for personal gain, because they could still make a few quid out of it. Therefore, a prosecutor might struggle with that distinction. I am interested to hear the shadow Minister’s view on sentencing guidelines.
Lyn Brown
I think the hon. Gentleman is absolutely right. We need to be clear in this Committee about who we want to target most. If we can make that clear, we might stand a chance of the legislation producing more than just five prosecutions and making a real impact on the “legal highs” that are out there. We should be going after those who are flooding our communities with invidious substances and tackling the real cause of the problems on our streets.
Mr Burrowes
On personal gain, do we not also want to proportionately tackle people who supply laughing gas to friends at school? They may not be the big people who earn lots of money, but they may gain by being able to get themselves an extra bit of laughing gas or by feeding a habit. They are all part of this supply chain. I would not want my children to be exposed to suppliers, whether professional drug dealers or just people who shift out this bad stuff in schools.
Lyn Brown
I accept that. Had I been lucky enough to be a mother, I would be saying exactly the same thing. Nevertheless, the kids in school who are supplying the laughing gas are getting it from somewhere, often from someone who is also giving them other stuff that they want to have pushed in the playground and in the streets. I am glad to see that the Bill will tackle offences in schools that affect children. We have also heard that there will be a good and effective education programme that will help children to say no to whatever substances are being pushed. I am genuinely pleased to hear that.
Carolyn Harris (Swansea East) (Lab)
Does my hon. Friend agree that we must also look at extending such measures to the vicinity of children’s homes where there are vulnerable young people, especially given the tendency for grooming to become the next stage in taking these hideous substances?
Lyn Brown
I understand that we will come to that later in the Bill with an amendment tabled by the hon. Member for Enfield, Southgate, who has been testing my thoughts on the legislation. I look forward to hearing from him on that.
As I have stated, a similar notion to the one I have been expounding already exists in the guidelines for sentencing under the 1971 Act. I would like to be assured that the Minister will work with the Director of Public Prosecutions to ensure that prosecutions are brought only when there is a clear public interest, which I would suggest there is not in the case of many social suppliers. I would find some reassurance in knowing that the Government will do what they can to ensure that the Bill is intelligently enforced.
Andrew Gwynne
It is a pleasure to follow my hon. Friend the Member for West Ham, with whom I agree that amendments 46 and 52 are so similar as to be almost indistinguishable. I very much hope that the Minister will consider adopting them.
I welcome this moment of harmony between Labour Members and our colleagues north of the border. Both amendments make a pertinent point: although it is right that the supply of existing drugs is considered an offence even if the supplier is not supplying them for personal gain, we should be very wary of criminalising those who are simply part of, say, a small group of individuals who have conspired to obtain psychoactive substances. That point was well made by my hon. Friend the Member for West Ham.
We are still in the early stages of controlling psychoactive substances. We should start from a presumption of ignorance for those not seeking to profit from the flow of such substances. My hon. Friend is absolutely right—I am sure that she does not speak from personal experience; she keeps protesting, so we will take her at her word—that the reality of drug experimentation, I am led to believe, is one of shared experiences. There is a qualitative difference between a group of young people procuring substances for shared use and a profiteer on the high street. The way in which clause 5 is currently drafted makes no distinction between those people and large-scale commercial suppliers; I have to say that that is just wrong. It is true that sometimes friends can be part of a supply chain, but they are right at the end of it. We should not, at this stage at least, impose a criminal record on a young person who gives some of these substances to their friends.
The Labour party is fully supportive of the principle of criminalising those who seek to make money from this pernicious trade. When someone is in the business of selling dangerous substances, we can assume they will be following developments regarding the illegality of their work, so I am firmly behind clause 5 in a general sense. Nevertheless, I urge the Minister to consider very carefully the fact that the amendment is intended to adopt a principle included in the 1971 Act: one of “personal gain”. Prosecutors could then still make a distinction regarding somebody who quite clearly profits from this trade, even if, as I said in an intervention, they happen to know the customer in a social capacity.
I note the reasoning behind subsection (3), and I approve of it. It must be made clear that the substance not being of a psychoactive nature is not a defence in itself if the supplier intimated that the substance would have such an effect, notwithstanding the fact that he or she would have no doubt trading standards on their case.
I urge the Minister to think carefully about this. The point made by my hon. Friend and, indeed, echoed by the SNP amendment is that we need to tread very carefully, so that we do not end up criminalising young people for the sake of it. We want to tackle the real issue, which is the supply of the psychoactive substances we want to ban.
Owen Thompson
I very much agree with the comments from Labour Members. It is not the intention behind any measures in the Bill to target these small groups of people. The Bill is very much aimed at those who put these substances in the marketplace and on high streets on a larger scale. That is the reasoning behind our amendment. If there are drafting issues, it is surely not beyond expert drafters, of whom I am not one, to come up with a form of wording that encompasses the aims of the three amendments we are discussing, while countering some of the issues raised by Government Members.
Lyn Brown
Does the hon. Gentleman agree that the Government have opened the door to this by not wanting to prosecute possession? The Government themselves are therefore saying that they want to get to certain classes of pusher and of people involved in psychoactive substances, not individuals who just possess a drug.
Owen Thompson
It largely comes down to another unintended consequence. We are not looking to target those individuals or small groups of friends, whatever the circumstances happen to be, who are not the object of the Bill. It is a question of how we capture that in a way that leads to successful prosecutions where necessary but manages to support people where it is not the mass-scale issues we have been talking about.
The amendment is a probing one. We will not push it to a vote, but I urge the Government to use it as an opportunity to seek an alternative and look at how best we can manage this aspect in a way that meets the genuine concerns raised by Government Members, while protecting young individuals who may find themselves charged with supply when, in fact, it is what anyone else would see as personal use.
Lyn Brown
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 6, in clause 5, page 3, line 14, leave out from “subject to” to end of line 15 and insert “section (Exceptions to offences) (exceptions to offences).” —(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 5, as amended, ordered to stand part of the Bill.
Clause 6
Aggravation of offence under section 5
The Chair
With this it will be convenient to discuss the following:
Amendment 48, in clause 6, page 3, line 43, at end insert—
‘(8A) Condition D is that the person who committed the offence knew, or had reason to believe, that the consumption of psychoactive substance would cause the person consuming the substance harm.”
Makes it an aggravating factor to sell a substance which the person knew or suspected to be harmful.
Amendment 55, in clause 9, page 5, line 26, at end insert—
‘(2) In sentencing, account shall be taken of the relative harm associated with the psychoactive substance that was the subject matter of the offence”
This amendment seeks to ensure sentencing is commensurate with the potential harm done by the substance involved.
Lyn Brown
We have tabled these amendments to address concerns about disproportionate sentencing. I raised this issue on Second Reading, and it figures heavily in the Home Affairs Committee report, which concluded that
“there is a lack of clarity in the Bill with regard to the relative harm associated with different types of NPS and the appropriate sentence commensurate with the offence.”
Amendments 47 and 48 would make it an aggravating factor to supply a psychoactive substance that the supplier knows, or has reason to believe, is harmful.
Under the 1971 Act, sentences are linked to the harm caused by the drug possessed, supplied or produced. The more harmful the drug, the harsher the maximum sentence. For example, someone prosecuted for possession with intent to supply a class A drug such as heroin could potentially receive a life sentence. The maximum punishment for possession with intent to supply a class C drug such as anabolic steroids, however, is 14 years. There is judicial discretion in applying individual sentences, but the general approach of linking to relative harm is important.
The Bill represents a radical departure from previous attempts to control drugs because it legally decouples controlled substances from an independent and objective assessment of the harm they cause. We understand why that might be appropriate. The process by which the ACMD determines the harm of a substance can be lengthy and resource-intensive, which is precisely why the Home Office cannot keep up with the illicit market. It is difficult to introduce a concept of harm in the Bill without denying the Home Office the tools it needs to address the central problem.
However, by introducing the concept of harm in clause 6, which exclusively addresses statutory aggravating factors, I do not believe we would hamstring the Home Office or prosecutors. Prosecutors would not have to prove a substance’s harmfulness to secure a prosecution for supplying, producing, importing or exporting a psychoactive substance; they would only have to demonstrate that the individual had reason to believe that the substance was harmful in order to establish an aggravating factor and a harsher punishment.
Lyn Brown
Just as importantly, the Home Office and enforcement agencies would still be able to control substances without having to prove that they are harmful. This amendment would therefore not place the authorities one step behind the market, which is the problem the Bill is designed to solve.
Section 1 of the Drugs Act 2005 included aggravation within its scope. I understand that this is hardly used. Does the Minister know how often it has been used successfully in court? He may seek inspiration on this one, or I am happy for him to write to me with the answer.
Lyn Brown
The greatest benefit of the amendment is that it would formally recognise that someone ought not to receive the same sort of punishment for supplying a relatively harmless substance as someone supplying a substance which they ought to know could be very dangerous. It keeps the traditional link between harm and sentencing, which is an important principle, without wrecking the Bill.
Andrew Gwynne
My hon. Friend makes an important point on the issue of harm and sentencing. We probably all agree in the Committee that it should be the intention of the law that the more harmful the substance being supplied, the harsher the sentence should be for that supply.
Lyn Brown
Absolutely. I think that were this included in the Bill it could have a deterrent effect on those involved in supply and change the nature of the market towards less harmful psychoactive substances. I note that the Scottish National party has an alternative amendment which seeks to achieve a similar end. I will repeat what I said when we found ourselves in the same situation when discussing how to exclude social supply: I am very happy to work with other parties and with the Government in order to ensure that our shared goals are reached. I hope that they take this offer in the serious manner in which it is intended.
I look forward to the Government’s response with interest. They will know that this is an issue which has exercised supporters and opponents of the Bill alike, and that if a way round the problem can be reached, we ought to grasp it. Our amendment has the potential to bring even more consensus to the Bill.
Owen Thompson
Apologies for my slightly delayed return; I had to act as a Teller for the vote that has just happened. Our amendment 55 is an amendment to clause 9 not clause 6, although it does fit nicely with those that are here. Our approach is to look to ensure that there is a genuine protection in the concept of relative harm, as the shadow Minister mentioned prior to our suspension, and that the associated psychoactive substance is the subject matter of the offence, so that we do take account and any sentence handed down is relative to the offence. I accept that different sentencing regimes are in place within Scotland and the rest of the United Kingdom and I appreciate the points that the Minister will, I am sure, be making about that.
Our amendment is a probing one, but the fact that it mirrors those tabled by the Opposition suggests that the intent behind the amendments is consistent, regardless of which part of this island we happen to be presenting them from—[Interruption.] These islands. I apologise. I suggest that, as the Bill progresses, due consideration is given to the intent behind the relative harm aspects mentioned in the amendments.
Mike Penning
I thank colleagues for their contributions. The last point raised by the shadow Health Minister, the hon. Member for Denton and Reddish, is probably the most difficult for me, not least because we would be moving away from the blanket ban. That is something that we have tried to introduce for many years. I fully understand the way in which the courts have historically looked at drugs sentencing, but this is new. However, the principle should not be any different. I highlight the fact that I will correspond with the Sentencing Council, as I alluded to earlier on. The situation in Scotland and Northern Ireland is different, but I am sure that they will follow that lead, not least because of the work the Scottish Government have done.
I fully support the principles behind the amendments, and it is clearly right that the courts should take account of the harms and the type of offence, but I feel that this is very much a matter for the independent Sentencing Council. The aggravating factors proposed in the amendments are already broadly covered by the Sentencing Council’s guidelines for drug offences, which we will be replicating. I take the point that my hon. Friend the Member for Enfield, Southgate made about the speed at which the Sentencing Council may need to move, and the speed at which we in Government need to move to give it the facts it needs to make decisions.
The process will be an evolutionary one. We do not want a young person—we keep referring to young people—or a person who had a small amount of a substance and sold it on to someone else because they were broke to be treated exactly the same as a drug dealer who has imported two tonnes of the stuff in a container through one of our ports. Clearly, in sentencing, that would be wrong. I am committed to writing to the Sentencing Council—it already knows that I am going to do this—to say that we expect it to take into consideration not only what the Committee and both Houses decide, but the relevant parts of the Home Affairs Committee report. The part that we have been discussing, in particular, is enormously helpful as we move forward. We do not want people to be treated differently under the law, but we want dealers, as we understand dealers, to be treated differently.
I cannot agree that we should move into the territory of harm, because to do so would completely damage the principle of our thinking. I accept that that thinking is completely new, and it will be quite interesting for the courts, the Crown Prosecution Service and the Director of Public Prosecutions. It is important that the Sentencing Council does its job in England and Wales, and that a similar thing happens in Northern Ireland and Wales. I noted the agreement of the hon. Member for Midlothian and the hon. Member for West Ham on that; when the hon. Gentleman suggested that it would be appropriate, there was a nod from Her Majesty’s Opposition. I have taken that on board, and I will write to the Sentencing Council. We could work together on the content of the letter.
Lyn Brown
I am grateful to the Minister for stating that he agrees with the principle behind the amendments and that he will write to the Sentencing Council to urge it to take note of what the Committee and the Home Affairs Committee have said. That is very welcome, and I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Burrowes
I beg to move amendment 40, in clause 6, page 3, line 20, leave out “or C” and insert “, C, D or E”.
Mr Burrowes
The amendments particularly focus on sentencing, on the aggravating factors when someone is convicted under the Bill and on whether there should be a particular focus on those who supply psychoactive substances to children outside accommodation for vulnerable children. They seek to put those factors on the same footing as supplying in the vicinity of a school.
If one thinks about the purpose of including a statutory aggravating factor applying to those who supply drugs in the vicinity of a school, which is in this Bill and in the Misuse of Drugs Act 1971, although we are dealing with new types of drugs, the principle is the same whether it relates to a controlled drug or a psychoactive substance. If someone is plying their trade outside a school, Parliament takes the view that that is a statutory aggravating factor that does not need to be left to non-statutory guidance from the Sentencing Council. We make it clear that that is an aggravating factor that will lead to an increased sentence.
The amendments seek to tease out from the Minister why there should be a distinction. We are considering psychoactive substances, so we have to look at where they are being pushed and where they are subject to wider abuse and exploitation. That is why the amendments particularly focus on extending the statutory aggravating factor to supplying outside residential children’s homes and supported accommodation such as hostels, foyers or night stops. When dealing with such accommodation, Committee members will know from their constituencies and wider knowledge that they often house vulnerable people who can be prone to other forms of exploitation. Substance misuse, particularly of psychoactive substances, can often form part of that.
The amendments refer to accommodation for vulnerable children in order to capture both residential children’s homes and supported accommodation in which local authorities place children under the age of 18. Evidence that has come before all-party groups and no doubt Ministers suggests that such children in such accommodation are more at risk of exploitation than others. It could be argued that they are more at risk of harm than those affected by the supply outside schools, because of the other types of exploitation and abuse that go on in these types of accommodation.
References are also made in the amendments to different aspects of residential care and why children are at particular risk. The Children’s Commissioner has found that a disproportionate number of children who are sexually exploited are living in residential care. Children at a high risk of sexual exploitation also run the risk of exploitation relating to drugs. The all-party parliamentary group on runaway and missing children and adults’ inquiry highlighted the targeting of children’s homes by perpetrators due to the abuse and high vulnerability of such children, which is why the amendments seek an additional statutory aggravating factor. Children in care often lack the shield of a family to protect them from risks, so 16 and 17-year-olds and others are at particular risk of abuse, whether related to drink, drugs or psychoactive substances.
In addition to children in care, vulnerable 16 and 17-year-olds may find themselves homeless or at risk of homelessness but do not become looked-after children. In that zone, they are prone to having complex needs, whether in relation to housing, substance misuse, including drugs, mental health issues, contact with the criminal justice system or wider exploitation. That is why the amendment seeks a statutory aggravating factor. Why not leave it to the Sentencing Council guidelines, which include the
“targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18”?
Non-statutory aggravating factors are already in the guidance.
We have to ask whether supplying to children outside a school is worthy of a statutory aggravating factor. The amendment would amend both the Bill and the Misuse of Drugs Act so that they are consistent with each other. Parliament needs to take the lead, as we did with the Modern Slavery Act 2015, which looked at many areas of exploitation, particularly the exploitation of children. Now is the time to look at the body of evidence and see that the particular vulnerability for children is not so much in schools, where there is more of a protective shield and statutory agencies are trying to prevent things from happening, but away from the eyes of many people. In an area that is sadly subject to exploitation, there may well be a need for Parliament to get on the front foot and ensure that there is statutory provision. That is my position; I hope the Minister considers it seriously.
Lyn Brown
I have enormous sympathy for the motivations that drove the hon. Gentleman to table the amendments. One of my first jobs was working in a children’s home, so I know just how vulnerable children can be. I also know that he has the support of the Children’s Society, which has been helping to make childhood in Britain safer for more than 100 years and is a fine organisation.
The Children’s Society has highlighted the relationship between new psychoactive substances and exploitation. Sometimes, that exploitation is economic, with reports of drug dealers forcing young men to work for them in order to pay off debts they that have accumulated by trying NPS. Sadly, as the hon. Gentleman mentioned, we also face the problem of sexual exploitation. The Children’s Commissioner found that more than a third—35%—of the children most at risk of sexual exploitation were living in residential care.
PACE—Parents against child sexual exploitation—have demonstrated that young girls have been targeted by groomers with NPS to try to get them hooked. We are all shocked by the grooming scandals that have hit many of our cities and towns, and I am in no doubt that the people engaged in such crimes are just the sort of criminals who ought to be hit by the strictest penalties provided by aggravated offences.
I am interested to hear what the Government make of the amendments. If they cannot accept the current drafting, would they be willing to go away, think about it and come back with alternative plans on Report, because this is an important issue? Will the Minister devote special attention to making sure that vulnerable children are given specific and focused education to ensure that they have the resilience to say no to those who want to prey on them with NPS and other drugs?
Steve Brine
On Second Reading, I mentioned Baseline Training, an assessment and training company based in my constituency. Further to what the shadow Minister was saying about the exploitation of young people, Baseline gave me some truly shocking evidence before the Bill was introduced in the House. In April this year, the Hampshire and Isle of Wight drug strategy group had good intelligence that young girls had performed sex acts on men who provided them with mephedrone. There is good evidence coming from Hampshire and, I suspect, other parts of the country that backs up what the shadow Minister said.
Lyn Brown
I thank the hon. Gentleman for his intervention. I emphasise again that young people in care are vulnerable and need us as their parents, in loco parentis, to help them to say no to those who want to exploit them and prey on them with NPS and other drugs. They need support so that they can look out for themselves.
Owen Thompson
I very much agree with the principle behind the amendment. From the correspondence I have had, I know that agencies such as Who Cares? Scotland very much support the proposals. This is a particular problem, because young people in supported accommodation and the type of accommodation we are talking about require extra support, protection and help. The amendment would go a long way towards addressing some of their needs and dealing with that. I voice my support for the aims of the amendment.
Mr Burrowes
I thank the Minister for that.
The clause tries to ensure consistency on controlled drugs in relation to supply at school premises, which is understandable, but this is a landmark Bill. Professor Iverson spoke about the Bill being one of the most important and significant pieces of legislation for 40 years. With that comes a need to ensure that sentencing is appropriate to the particular substances and recognises the characteristics of certain substances. It has already been mentioned how, sadly, such substances are used for exploitation, often of children and those in particular types of accommodation and in care. Supply of substances is a characteristic of the abuse, and that is why it is right for Parliament to consider whether it wants to ensure that supply to a vulnerable child is an aggravating factor.
I concede that the Sentencing Council has non-statutory guidelines that seek to address the matter, but it is important to recognise that they are guidelines, not tramlines. As a Parliament, we have a duty to vulnerable people, where there is that power imbalance. The substances that we are seek to criminalise and to set appropriate sentences for increase dependency, create debt, stupefy children and allow them to be exploited. As a Parliament, we should have tramlines, not guidelines, and we should be absolutely clear about that.
We can say too often that we are sending out a message. We should not always send out messages with Bills, but part of this Bill is about sending a message that these substances are illegal and are not good or safe. Part of that message should relate to sentencing so that it is clear that anyone who wants to risk plying their trade to vulnerable people in the type of accommodation specified will face a hefty sentence. Those people will not be looking up the sentencing guidelines that will go to the magistrates court and the Crown court. They will not have a clue about that, but they may well get a clue that the offence has a maximum penalty of seven years or so and that they will be at the upper end of the market for sentencing.
I recognise that the Minister will consider the matter seriously and in good faith. It must be looked at across the piece, along with the relationship between drug sentencing and the Sentencing Council. The Bill is innovative, and we want to ensure that we send out a clear, stark message to those who exploit the most vulnerable. I look forward to the Minister considering the matter further at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 7, in clause 6, page 3, line 43, leave out “on prison premises.” and insert “in a custodial institution.
‘( ) In this section—
“custodial institution” means any of the following—
(a) a prison;
(b) a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre;
(c) a removal centre, a short-term holding facility or pre-departure accommodation;
(d) service custody premises;
“removal centre”, “short-term holding facility” and “pre-departure accommodation” have the meaning given by section 147 of the Immigration and Asylum Act 1999;
“service custody premises” has the meaning given by section 300(7) of the Armed Forces Act 2006.”—(Mike Penning.)
This amendment replaces the reference to “prison premises” in clause 6(8) with a reference to a “custodial institution”. It then defines a custodial institution; the definition includes adult and juvenile prisons, immigration detention accommodation and service custody premises.
Ordered,
That subsection (9) of Clause 6 be transferred to the end of line 29 on page 3.—(Mike Penning.)
Clause 6, as amended, ordered to stand part of the Bill.
Clause 7
Possession of psychoactive substance with intent to supply
Amendment made: 8, in clause 7, page 4, line 18, leave out from “subject to” to end of line 19 and insert “section (Exceptions to offences) (exceptions to offences).”—(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 7, as amended, ordered to stand part of the Bill.
Clause 8
Importing or exporting a psychoactive substance
The Chair
With this it will be convenient to discuss amendment 54, in clause 8, page 4, line 38, leave out sub-paragraph (i).
This amendment seeks to explore how we can ensure that there is no criminalisation of those who order psychoactive substances over the internet for personal consumption.
Lyn Brown
This is a probing amendment that would delete subsection 1(d)(i), which criminalises an individual for importing a psychoactive substance for personal consumption. Committee members will be aware that on Second Reading it was argued that subsection 1(d)(i) creates a troubling inequity. Although it will not be an offence under the Bill to purchase a psychoactive substance from a shop, drug dealer or website that supplies from the UK, it will be an offence to purchase the very same drugs from a website that distributes from outside the UK. That is important because the internet plays a significant role in the supply of NPS, unlike many other substances. According to the Home Office, about 6% of abusers obtain NPS over the internet, but other surveys have found a much higher rate of internet purchase of NPS. The Global Drug Survey 2014 found that 22% of its sample had bought psychoactive substances from the internet.
The inequity created by subsection 1(d)(i) is particularly worrying, because a consensus has been built around the Bill on the basis that it will not criminalise users. Unfortunately, it is hard to see how a ban on importing for personal consumption could have any other effect. In practice, it will often be difficult for purchasers to know whether they are buying from a UK-based site, so they will not easily be able to tell whether they are committing an offence. Unless amended, the law could lead to websites and sellers on marketplace sites such as Silk Road and its successors prominently advertising that they are UK-based, or perhaps foreign-based but posting from the UK, which would make a mockery of the law. Websites may also attempt to trick British users into thinking that they are transferring the drugs from within the UK by adopting a .co.uk address. The subsection is bound to create unwitting criminals. What measures has the Minister put in place to mitigate that?
I suspect that the Government may be concerned that deleting subsection 1(d)(i) will create a loophole that will make it harder for them to tackle the NPS industry, because, if the subsection were removed, UK-based suppliers might be able to claim that they are importing for personal consumption and evade the law by making lots of small purchases. If the Government make that case convincingly, I will happily withdraw my amendment as I am committed to tackling this dangerous industry. However, I seek assurance that the Home Office has seriously considered how this part of the Bill can be effectively drafted not to not criminalise users. For example, quantitative measures of personal consumption could be incorporated into the Bill to differentiate between personal and professional importation, as is the case for regulations that manage the importation and excise duty of cigarettes and alcohol.
I note that Scottish National party Members have also tabled an amendment exploring this issue, and I am sure they seek the same assurances. Just as on the issue of social supply, I ask the Minister to work with prosecutors and the Sentencing Council to ensure that the Bill does not go after the people we do not want it to go after. I include importers for personal consumption within that group.
Finally, I turn once again to the issue of the resources necessary to enforce the Bill properly once it becomes law. The National Crime Agency admitted that it has a continuing problem preventing the importation of NPS, particularly from China. The NPS expert review identified a number of challenges faced by UK border controls. Some of those challenges, such as the fact that Border Force needs greater powers to seize suspicious packages, will be addressed by the Bill. However, some of the challenges identified by the expert panel require a non-legislative response. The expert panel claims that the intelligence picture on NPS trade is very limited and that we have particular difficulty dealing with websites due to the anonymity provided by e-currencies. What progress has been made on addressing those weaknesses identified by the expert panel?
This is one of the most important issues in the Bill. If we cannot get to grips with the importation of such substances, closing the head shops is all the more likely to lead to the same drugs finding their way into the hands of professional drug dealers, including gangs.
Mike Penning
Again, I thank both the shadow Minister and the SNP spokesman for indicating that these are probing amendments, so my colleagues can relax.
The shadow Minister summed up exactly why I will not accept the amendment. We are not trying to pick on individuals who purchase these products for personal use but, as we close head shops and other avenues, there will clearly be an increase, as the expert panel highlighted. As the Minister for Policing, Crime and Criminal Justice, the National Crime Agency is my responsibility. I have been working with the NCA and other agencies, and I have particularly been working with my colleague, the Minister for Immigration, because obviously Border Force will have a crucial role.
If we accepted the amendment, the debate would be about what is personal use. During this debate we have heard about cigarettes and alcohol. My family was in the pub trade for many, many years, and there has been an issue with Transit vans—I apologise for picking on Ford—and other large vans going across to Calais and coming back full of cigarettes and alcohol. When those vans are stopped by borders, immigration and customs, the driver says, “This is completely for personal use.” That opens up a difficult area.
The amendment would make it difficult for Border Force to do the job we need it to do. As has been highlighted, we absolutely need the expertise in that relevant area. On the point that the hon. Member for Midlothian made about the difficulties that exist online, some of the expertise that we increasingly need is there, but a lot of this is organised crime, and those are the people we are after. I am absolutely determined that the NCA and the other agencies should have the powers and the expertise they need to go after those people, not the little guy who is in possession for personal use.
The difficulty in law—this has been an issue in the courts—is personal use. It is a really difficult area, and that is why I sadly cannot support the amendments. I understand fully their probing nature. I always argue that it is all too easy to build up points as a constable by picking on the little guy, when the others are the guys that we want. I assure the Committee that we have introduced the measures to allow us to get the big guys, not to pick up the little guys. We will keep a close eye on the situation, but I think we have what we need.
Lyn Brown
Has the Minister given any thought to how purchasers will know whether they are buying from a UK site? I do not think that they will be able to tell whether they are committing an offence. There will be criminals out there who will trick people into believing that they are buying from a UK site.
Mike Penning
If they buy from a UK site, it is illegal under the Bill, because it is selling. If those who run the site try to represent themselves as a UK site to sell the product, that is just as illegal as being a head shop. What we have said all the way through the Bill is that it is not legislation that is the silver bullet but education and understanding. It will be generational for some people, but that is where the proportionality that we talked about earlier in the criminal justice system, in local government and in trading standards comes in. It is important that we discuss this point, but we need to ensure that there are no loopholes and that the agencies that we are asking to look after us and the legislation have the powers that they need.
Mike Penning
I understand fully the point that the hon. Lady is making, and it is a difficult area. What I cannot do is to open up the whole Bill because of what will, I hope, be a small group of people. The likelihood of their being prosecuted in that area is very unlikely, because of everything that we have debated. Purchase and possession would be legal—we have discussed that—so there would be no illegality on the part of the individual. It is the seller or the dealer we are after. I think I am right on that point.
Lyn Brown
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 9, in clause 8, page 5, line 6, leave out from “subject to” to end of line 7 and insert
“section (Exceptions to offences) (exceptions to offences).”.—(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 8, as amended, ordered to stand part of the Bill.
Clause 9
Penalties
Amendment made: 10, in clause 9, page 5, line 26, at end insert—
“( ) A person guilty of an offence under section (Possession of a psychoactive substance in a custodial institution) is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
(ii) to a fine,
or both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine, or both.”.—(Mike Penning.)
This amendment is consequential on NC2. It provides that the new offence of possession of a psychoactive substance in a custodial institution, as inserted by that new clause, attracts a maximum penalty on conviction on indictment of two years’ imprisonment, a fine, or both.
Clause 9, as amended, ordered to stand part of the Bill.
Clause 10
Power to provide for exceptions to offences
Question proposed, That the clause stand part of the Bill.
Mike Penning
This is a technical thing, but it is important. The clause confers on the Home Secretary the power to specify exceptions to the offences in clauses 4 to 8 by regulations. As we have already debated, new schedule 1 lists certain excepted activities on the face of the Bill, so clause 10 is not required.
Question put and negatived.
Clause 10 accordingly disagreed to.
Ordered, That further consideration be now adjourned.— (Jackie Doyle-Price.)
Psychoactive Substances Bill [Lords]
Baroness Brown of Silvertown Excerpts(9 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mike Penning
The hon. Gentleman makes a comment when he is not even in the Chamber—he should know better, as he has been here long enough.
Lyn Brown (West Ham) (Lab)
I am a little confused by the diversion from where I thought we were going. Would not a purchaser need to know that the substance was illegal when purchasing it? If so, we will need a definition of what psychoactive means. Is that not right?
Mike Penning
That is exactly the situation, and that is exactly what the Bill says. I do not understand the diversion either.
Lyn Brown (West Ham) (Lab)
The Opposition support the principles of the Bill. The 2015 Labour manifesto included a commitment to ban the sale and distribution of dangerous psychoactive substances, which is why we are with the Minister tonight.
The illicit drugs situation in the UK and throughout the world is constantly changing. Protecting young people from harm is our responsibility, even if we know that there is no silver bullet to reduce the trade in drugs. New psychoactive substances can be a significant danger to public health, and they have taken people’s lives. Jimmy Guichard was a fun-loving, sporty 18-year-old bloke living in Kent. He had heard of legal highs and decided to try them. He bought a packet of Clockwork Orange from a local head shop, and he may have taken a high dose, possibly the same as he would have done for ordinary cannabis. He had a severe reaction, suffered a heart attack and, sadly, died the next day.
Owain Vaughan was 14 when he tried a brand of synthetic cannabis with friends and was overcome by its potency. He described the effects to BBC News:
“It made me physically ill, I collapsed, I started fitting, I tried to get up, but fell straight back down and banged my head…I felt my own heart stop and I was scared.”
Unfortunately, stories like Jimmy’s and Owain’s are not isolated incidents. The Office for National Statistics reports that there were 67 deaths in England and Wales involving psychoactive substances in 2014, so the problem is clearly growing.
We do not have comprehensive evidence about the overall harm of psychoactive substances, but people have died as a result of taking these drugs. Some of the substances can cause severe adverse effects such as heart palpitations, panic attacks, hallucinations and even psychotic episodes.
The supply of these drugs is becoming an industry. They are made, marketed and supplied by unprincipled organisations for financial profit. Our understanding of the dangers of legal highs has been greatly enhanced by the work of the Angelus Foundation, and I pay tribute to Maryon Stewart, who established the foundation after losing her daughter Hester, a medical student, to the legal high GBL in 2009. Research by the Angelus Foundation has estimated that there were more than 250 head shops in the UK selling these products in 2013. According to the crime survey of England and Wales, around a third of all new psychoactive substances purchased in the UK came from such businesses. Head shops claim that they do not sell illegal substances, but Home Office tests have shown that almost 20% of packets of new psychoactive substances contain illegal drugs.
Head shops and other high street retail outlets normalise drug taking and encourage people to experiment with and use drugs. The names and packaging are designed to attract young adults to experiment, and free samples are regularly used as part of marketing strategies. The fact that substances can be bought on the high street in broad daylight without any sanction whatever gives the illusion that the substances are both safe and legal. There are hundreds of internet sites that sell these substances online, with little or no knowledge of who they are selling to. The Home Office estimates that the industry has an annual turnover of £82 million. Overall, the UK has the largest new psychoactive substances market in Europe.
As the Minister stated, drugs have traditionally been controlled in the UK through the Misuse of Drugs Act 1971, under which the Home Secretary has the power to put substances on a banned list, so long as he or she has consulted the Advisory Council on the Misuse of Drugs. Since the middle of the previous decade, that mechanism has been put under great strain by the explosive growth of new psychoactive substances. We have managed to control some of them, but let us be under no illusion—that has not solved the problem.
The relatively easy process of creating new psychoactive substances means that these new drugs are appearing on the market all the time. In each of the past six years, more substances appeared on the market than was the case in the previous year. The Home Office and the Advisory Council on the Misuse of Drugs cannot keep up because the traditional process of classifying the drugs, with its independent and objective process of assessing the overall harms of a particular substance, can be cumbersome. It is a game of whack-a-mole that the authorities are hard pressed to win. In 2011, the Government tried to deal with the problem by introducing temporary class drug orders. TCDOs allow the Government to ban the production and sale of new psychoactive substances while the ACMD gathers more information on the risk and harm associated with those drugs.
There are problems with TCDOs. First, they are inherently reactive, and there is always a time gap between a drug coming on to the market and being subject to control. The second problem is that TCDOs last for only 12 months, which puts significant pressure on the ACMD to assess the harm caused by the drug quickly. Another approach taken by the Home Office under the Labour Government was to add generic groups, rather than specific compounds, to the list of controlled substances. Although this procedure has had some success in controlling new psychoactive substances, it is clear that we are dealing with an evolving problem that our current legal framework cannot get to grips with.
In December 2013, the Government appointed an expert panel that recommended that the most effective way to deal with new psychoactive substances would be to introduce a blanket ban on the supply, importation and exportation of any psychoactive substance that was not specifically controlled or exempted. This approach, as we have heard, is modelled on legislation passed in the Republic of Ireland in 2010. There were 102 head shops in Ireland at that time, according to the Irish police force, and they have now “virtually disappeared”. The expert panel was clear that the number of clients attending drug treatment services had declined: 368 people received treatment for problems in 2011 and that number fell to 220 in 2012. Although I accept that it is too early to make a long-term judgment on the success of the Irish model, it seems to have made a start at tackling the problem.
The Bill takes up the expert panel’s recommendation and makes it a criminal offence to produce, supply, import or export these drugs. I am not so naive as to think that we are going to shut down the industry altogether, even though that is what many people would want, but by more quickly containing production and supply upstream, we will hopefully reduce the harms to young people downstream.
Stephen Phillips
Does the hon. Lady share my concern, which we need to consider when we think about the Bill, that the closure of the head shops makes it possible that the entire trade will be driven underground, that it will link itself with the illegal drug trade, and that those who might at present go on to the high street or into a garage and purchase what they think are legal highs, which may be very dangerous for them, will end up using much more serious class A and class B drugs?
Lyn Brown
I accept what the hon. and learned Gentleman says, but one of the things I find particularly repulsive is that our young people see these head shops in front of them on the high street, and then think that the shops are legal and safe because if they were not, the police would have come along and nabbed them. I will answer him later because we do need to think about what happens with an underground market.
This Bill sends out a message to young people who are unaware that these substances are dangerous. Many of those that are sold in the shops are illegal now, let alone before we ban the lot of them. As I support the aims and general approach of the Bill, I want to ensure that it is drafted and implemented as effectively as possible, so I will press the Government on several issues and worries. I hope that the Minister will take my recommendations and concerns in the constructive manner in which they will be intended.
My first point is about education. The Bill is an appropriate way to try to tackle the supply of dangerous psychoactive substances, but we need to reduce demand. Unfortunately, there is a load of misinformation about psychoactive substances. Research by the Royal Society for Public Health found that a quarter of young people aged between 16 and 24 believed that so-called legal highs were safer than illegal drugs. This is a dangerous misunderstanding, because some of the new psychoactive substances have gone on to be controlled and designated as class A, indicating that they were some of the most harmful drugs around before they were controlled. Passing this legislation has the potential to put to bed the dangerous myth that psychoactive substances are safe, but the measure will do so only if it is supported by a concerted communication and education strategy.
The Labour Administration in Wales have shown us how that can be done by putting education at the forefront of their drug prevention strategy. There is now a core substance misuse education programme in 97% of Welsh primary and secondary schools to ensure that almost all Welsh schoolchildren receive accurate, consistent and credible information about the potential harms of drugs, rather than having to rely on myths and guesswork. Labour Members have consistently emphasised the role of PSHE—personal, social, health and economic education—in reducing drug use. I have voted to make PSHE compulsory in schools, and that needs to be considered again.
Dr Philippa Whitford (Central Ayrshire) (SNP)
This aspect did not go to the Advisory Committee on the Misuse of Drugs and has therefore been put together without its advice. The use of illegal drugs has been going down not because of locking people up and criminalisation, but because of education. We all want these chemicals not to be used, but we must not overreact and not use education enough, because it is a key tool.
Lyn Brown
The hon. Lady is absolutely right; I completely and utterly agree. Education is the key to this. We need to reduce the demand for the supply.
Thus far, a mere £180,556 has been spent on education programmes on new psychoactive substances, as the Minister told the House in a written answer on 2 June. Sadly, the Government rejected Labour’s amendment to the Bill in the Lords which would have placed a statutory duty on the Secretary of State to increase public awareness and help schools to educate children about the dangers of these drugs. Let me say gently that that is a wholly inadequate response given that the Government themselves recognise that these drugs are a serious problem. If we want young people to have the resilience, the confidence and the knowledge to say no, we have to be fully committed to a comprehensive education programme across the UK.
The next area where the Minister needs to exercise care and caution is proportionality of sentencing. Under the Misuse of Drugs Act, sentences are linked to the harm caused by the drug possessed, supplied or produced—the more harmful the drug, the harsher the maximum sentence. Of course, there is judicial discretion in applying individual sentences, but the general approach of linking to relative harms is important.
The Bill represents a radical departure from previous attempts to control drugs, because it legally decouples controlled substances from an independent and objective assessment of the harm they cause. We understand why that may be appropriate. The process by which the ACMD determines the harm of a substance can be lengthy and resource intensive, which is precisely why the Home Office cannot keep up with the illicit market. It is difficult to introduce the concept of harm to the Bill without denying the Home Office the tools it needs to deal with that central problem.
It is because this Bill suggests such a radical change that we need carefully to consider the impact it will have when implemented. I am worried that we might end up in a situation where someone who is prosecuted for selling a weak psychoactive substance faces the possibility of the same seven-year custodial sentence as someone who sells a very dangerous substance. The Bill contains no classification system to differentiate between those two crimes. I fear that the proposed laws could lose the confidence of the public and the judicial system if the issue of proportionality is not looked at carefully. As the Minister will be aware, the issue has exercised the Home Affairs Committee.
I am particularly worried about the proportionality of sentencing for young people involved in social supply. It is not unusual for a number of young people to club together and for one person to buy substances off the internet and distribute them among friends, or even for one individual to sell a small amount to a friend. The Bill makes no distinction between those people and large-scale importers. We need to look at that.
Has the Minister considered providing credible measures for a relatively harmless substance to be excluded from the controls, if that is deemed appropriate? Conversely, if a new psychoactive substance proves to be particularly harmful, surely it should be removed from the scope of the Bill and controlled under the Misuse of Drugs Act. Reviewing that may be an appropriate responsibility of the ACMD.
Another issue that needs careful consideration is how the police and prosecutors can both determine and prove that a substance is psychoactive. I am sure the Minister is aware that Professor Iverson, chair of the ACMD, has previously written to the Home Secretary warning her that we will have to rely on proxy measures of psychoactivity, such as in vitro neurochemical tests, in order to prove psychoactivity, but that they may not stand up in court.
We should take Professor Iversen’s warnings seriously. Although similar legislation in Ireland appears to have been broadly successful—given the statistics I quoted earlier—there have been only five successful prosecutions. Police in Ireland have admitted that that is because they find it difficult to prove the psychoactivity of substances. We want sellers to stop selling psychoactive substances voluntarily, and for consumers to stop purchasing the drugs. However, it is hard to imagine that that would work without any prosecutions at all. The law simply would not provide a credible deterrent.
Mike Penning
I raised this issue with the Minister in Ireland, where local authorities and others can use the powers they have been given without having to go all the way to the criminal courts. This Bill also gives extensive powers to local authorities. That addresses some of the hon. Lady’s concerns, but the Bill Committee will look at the issue in more depth.
Lyn Brown
I am grateful to the Minister for that assurance. If the ban pushes supply away from the high street and increases online sales, there will be a need for resources and to look at how technology and international co-operation can disrupt supply and delivery routes. Is the National Crime Agency going to take the lead on online sellers? Does the Minister have the information to hand? Perhaps he could inform us of the plans when he winds up the debate.
Paul Flynn
The European Monitoring Centre for Drugs and Drug Addiction in Lisbon has reported that the lifetime use of these substances in Ireland before the ban was 16%, but that four years after the ban it had increased to 22%. Is it not true that almost every drug ban has resulted in an increase in usage?
Lyn Brown
I have only been in this job for two weeks, but if I had been in it for a bit longer and the Public Bill Committee was not next week, I would have nipped over to Ireland to find out. My information is that the ban has closed down the head shops. The second piece of information from Ireland is that the number of people going to hospital with the effects of psychoactive drugs has also declined. I have managed to glean those two pieces of information from Ireland. I promise that I will do more research on Ireland before the Committee next week. Even if I am not allowed to go across to Ireland—can I go?—I will certainly have a look at that. [Interruption.]
Norman Lamb
I will not take that groan personally. To follow up on the intervention by the hon. Member for Newport West (Paul Flynn), the hon. Lady may be interested to know that in Poland, where the same approach is being applied, the number of poisonings—this is about damage to young people—has gone up dramatically since the ban came in from 562 cases in 2010 to 1,600 in the first 10 months of 2014. Does that not give her cause to pause in supporting the Bill?
Lyn Brown
I thought I had said that, but I obviously did not say it well enough. However, I thank my hon. Friend for his assistance.
I understand that the ACMD has offered to work with the Home Office to try to overcome the problem of needing to prove psychoactivity, and that the ACMD believes the issue can be resolved. I look forward to the Minister informing the House about what progress is being made on that issue so that we can be assured that the Bill has the teeth it needs. The definition of psychoactivity should be at the core of the Bill, so I am rather surprised that the Government felt able to move the Bill’s Second Reading without that point being resolved. The ACMD recently met the Home Secretary, and the House really needs some detail on how the discussions are progressing.
I want the Minister to consider monitoring and evaluation. I am pleased that the Government are now making a statutory commitment to review how well the Bill works. However, it is important that we are given more details of the intended scope of the review. We need to know that we are breaking up not just the legal market, but the overall supply chain as well. Ultimately, the ban may have the effect of reducing the number of users of NPSs, but of increasing the risk for those who continue to use them. It is clear that a wide-ranging and comprehensive review, backed up by thorough and better research, will be necessary.
I also want the Minister—he can see that I have a long list—to speak to his colleagues in the Ministry of Justice to see whether the impact on prisons can be given particular attention. I am sure that he was as alarmed as I was by the prisons and probation ombudsman’s report in July, which found that new psychoactive substances were a factor in the deaths of at least 19 prisoners between 2012 and 2014. The annual report of Her Majesty’s chief inspector of prisons was just as concerning. It found that NPS
“has had a severe impact and has led to debt and associated violence.”
That is a real problem for our prisons, and we need to know that it is being dealt with.
Stephen Phillips
A point that may not have occurred to the hon. Lady arises from the two points that she has put to the Minister—the impact on the MOJ’s budget of the difficulty of proving that something is a psychoactive substance within the meaning of clause 2. That issue will inevitably have to go to a jury, and will therefore require expert evidence on both the prosecution and the defence sides. Has she considered the potential financial effects on the legal aid budget if clause 2 is not amended?
Lyn Brown
I am clearly being far too subtle. I am not often accused of that. I talked about resources and clearly we understand that that will be an issue. I thank the hon. and learned Gentleman for drawing the point out and for being so succinct.
The Home Secretary has said that the Home Office is actively considering the point about prisons and intends to table an amendment in Committee. I hope that that is still the Government’s intention. I will examine any such amendment carefully.
Mike Penning
Perhaps I was a bit too subtle as well, because I think I said that we would do that.
Lyn Brown
In conclusion, the Opposition want the best possible Bill so that young people are not exposed to these dangerous, untested substances and so that we reduce the harm that they do. I want to work with the Government to ensure that that happens. That means looking seriously at the potential weaknesses in the Bill. We will stress throughout the legislative process and beyond that this problem cannot be tackled through law enforcement alone. We need to restrict supply and demand. That means looking once again at the state of drugs education in this country, alongside reducing the overall public health harms.
Several hon. Members rose—
Cannabis
Baroness Brown of Silvertown Excerpts(9 years, 3 months ago)
Westminster HallRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lyn Brown (West Ham) (Lab)
It is a pleasure to speak under your chairmanship, Mrs Gillan. I start by thanking the Petitions Committee for scheduling this debate. I thank my hon. Friend the Member for Newport West (Paul Flynn) for his measured and well-researched contribution. The e-petitions process is an invaluable addition to our democracy, as it ensures that we can directly respond to the interests of the British public. That can only be a good thing. The petition that sparked this debate was signed by 125,000 people in just four days. It is clear that there is a degree of public interest in the legal status of cannabis, and it is right that we carefully consider the issue. The debate’s quality has allowed us to do precisely that, although this is clearly not the end of the debate.
Since the late 1990s, cannabis use in Britain has significantly reduced, particularly among the young. According to Home Office statistics, nearly 30% of 16 to 24-year-olds had used cannabis in 1998. In 2014-15, it was a little over 16%, although the percentage had slightly increased over the previous two years from 13%. We are still on a positive trend, although it would be invaluable to understand what has driven the increase in the past two years. I wonder whether that is related to the cuts we have seen to youth services. It is also important to note that there has been an increase in synthetic cannabinoids.
As has been discussed, Portugal and other countries have chosen to decriminalise cannabis and other drugs. I know some would like to see us go down the same route in Britain. When considering lessons from Portugal, we should be clear that its drug policy is far from permissive. It removes criminal penalties for simple possession of small amounts, rather than having the wholesale decriminalisation of possession, supply and production offences. Those caught with drugs are summoned before a tribunal or dissuasion commission, which includes a psychiatrist and a social worker, who often mandate rehabilitation services or issue financial penalties. There is still a concerted effort by law enforcement, working in conjunction with the health service, to reduce drug use and in particular to control production and supply.
I am aware that Björn Hibell’s study of European drug trends shows that cannabis use is reducing among the Portuguese young. However, we must recognise that cannabis use is decreasing even faster among British youths, although from a higher base, and that there has been an increase in the use of cannabis and other decriminalised drugs among older groups in Portugal.
I understand that one reason why many may have signed the petition is that too many people, young and old, feel that they have had their lives blighted by a conviction for the possession of cannabis. A conviction may well prevent someone from getting a job while it is still on their record, and some professions—in law, accountancy and medicine—even require the disclosure of spent convictions. Our police have discretion over how to enforce the law against possession. In some areas, such as Durham, that means a force-wide policy of not charging people for possession, or even for growing their own plants. In other areas, individual police officers are allowed to make their own judgment, which includes charging people with a first offence and the possibility of a custodial sentence. We have de facto decriminalisation in some parts of the country and enforcement in others. This is an extraordinary postcode lottery. Given that a drug conviction has such a serious impact on a person’s life, this postcode lottery is simply unacceptable.
We should also recognise racial disparities. Black people, on average, use drugs less than white people, but are six times more likely to be stopped and searched for drugs. This inequity needs to stop, so I say gently to the Minister that what we lack at the moment is Government direction and leadership. If the debate does nothing more, I hope that it will flag up to the Minister that he might have some work to do to ensure the equity of law across the country and for all citizens.
My hon. Friend the Member for Newport West has consistently campaigned for the use of cannabis to be legalised for medicinal purposes, and he has made that case again today with characteristic eloquence and sincerity. I have enormous sympathy for anyone who seeks the most effective way to access pain relief. I do not doubt the reports made by those with multiple sclerosis and other illnesses that drugs can bring pain relief and improve muscle control. However, I do not believe that we need to legalise cannabis to have access to its medical benefits.
THC, the active ingredient in cannabis, is used as an ingredient in the drug Sativex, which we heard about earlier. It is already licensed in the UK—in Wales—to relieve the symptoms of MS and other medical conditions. We can and do benefit from THC without legalising forms of cannabis that are used recreationally. I understand that this is something that the Government’s drug advisers, the Advisory Council on the Misuse of Drugs, support.
I am also aware that Sativex is not available on the NHS in England owing to the cost of the drug. Although that is ultimately a decision for NICE—I accept that—I ask that Ministers look at this again. Sativex is, after all, available on prescription in Wales, as I have said, and MS sufferers in England should not face greater pain and difficulty simply because they live on the wrong side of a border. Despite the medical benefits of THC, which can be accessed through Sativex, there remains real public concern about the negative impact that recreational cannabis has on health. I share many of those concerns. My main worry about the drug is its impact on mental health, as eloquently outlined by the hon. Member for Central Suffolk and North Ipswich (Dr Poulter). We know that regular users are more likely to develop psychotic illnesses, including schizophrenia. There is also a link between cannabis use and developing depression or anxiety, particularly among those who started smoking cannabis as adolescents.
Britain has some of the highest rates of mental illness in the world. The Mental Health Foundation and Mind tell us that one in four Britons suffers from a mental health problem over the course of each year. According to the Office for National Statistics, 15% of us will seriously contemplate suicide at some point in our lifetime. Given these mental health concerns, I think it would be irresponsible to support measures that may make the drug more readily available—something likely to occur if we legalise the drug.
As I understand it, Holland abandoned its model of completely ignoring personal possession due to the impact of the drug on mental health conditions. This is worrisome, especially given the potency of cannabis on our streets. According to the Home Office’s most recent potency study, intensively grown cannabis, which is the most common form of the drug in the UK, has on average a 15% THC concentration. Traditional cannabis, if there is such a thing, has just 9%. Strong strands of cannabis have all the more impact on minds. We also have the growing problem of synthetic cannabinoids.
In conclusion, I ask appropriate Ministers to look again at Sativex and the use of cannabis for those with particular physical conditions that can be alleviated by the drug. I believe the Minister should look at the postcode lottery of criminalisation due to cannabis possession and use, but I am not persuaded of the case for the legalisation of cannabis. In this place, we should always have mind to the impact of our actions on public health. Legalisation will not improve this. Legalisation has the potential to exacerbate the problems that we have with drug dependency and mental illness.
Mrs Cheryl Gillan (in the Chair)
Before I call the Minister, it may be helpful to tell you that I intend to call Mr Flynn, the proposer, at the end. He has indicated that he would like to speak.
Assisted Dying (No. 2) Bill
Baroness Brown of Silvertown Excerpts(9 years, 4 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lyn Brown (West Ham) (Lab)
I am afraid that I cannot support this Bill. My concern is that we will fundamentally change the way that our society thinks about and deals with the terminally ill, severely disabled people and the vulnerable, troubled and elderly.
My mum died suddenly and unexpectedly, riddled by cancer, but I know that my mum, faced with a terminal prognosis in a world where there was the possibility of state-assisted suicide, acceptable and accepted by society, would have tormented herself during her last months with the question of when she should ask for that button to be pressed. She would have worried about the stresses that my sister and I would have endured, she would have worried about the weight of her care being shouldered by the nurses and the doctors, and she would have been anxious that folk would think that she was consuming too many resources, selfishly staying alive, costing money, when she could and should just die.
My mum was not vulnerable. She was not alone or a depressive. She was dearly loved; and yet I know that the mere existence of legal and assisted suicide would have placed an enormous burden on her. But what of those without a loving family? What of those elderly people—let us face it, they do exist—with families more interested in the cost of care, and its impact on their dwindling inheritance, than the priceless gift of life? Would not some of my more vulnerable constituents think that they ought to take a course of action because it is available and despite the safeguards in the Bill, which I acknowledge have been carefully crafted? Can we be absolutely sure that they would not be pressured into it?
It is naive to believe that we can prevent an elderly, expensive or asset-rich relative being encouraged, coerced or emotionally blackmailed into taking their own life. And if just one person makes that decision to end their life as a result of such pressure, that would be a tragedy.
The Bill seeks to provide the right to assistance in dying only to those who are terminally ill. I believe supporters of the Bill have real integrity and do not intend its scope to be extended further. But if the Bill is passed, I believe that its scope will be extended, partly by case law, to apply to more people. Holland introduced assisted dying for the terminally ill in 2002. Initially, hardly any patients with psychiatric illnesses or dementia sought suicide. Now, just 13 years later, assisted suicide is sought and granted to elderly, lonely or bereaved people. Pressure for doctors to accede to requests comes from patients and relatives, as I believe it will here.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
The hon. Lady is talking about the consequences of giving the Bill a Second Reading. Will she address for a second, though, the consequences of not giving the Bill a Second Reading? Assisted suicide will be available; it will simply be available to those who have the means and the determination to go elsewhere. What does she think should happen for these people, and for those who are currently protected from prosecution by the DPP’s guidelines?
Lyn Brown
I am against this Bill because I worry that the mere existence of the process of assisted dying will make the vulnerable more vulnerable. It will change fundamentally the relationship between a patient and a doctor, and I oppose it most strenuously, because I think it will fundamentally, slowly but inexorably, change our society’s attitude to death and the dying, with a creeping invidious expectation that our elderly, infirm or disabled should take themselves out of the igloo of old, and die a dignified death, leaving the young, fit and able unencumbered by their burdensome, difficult, messy, expensive, pain-filled and challenging lives.
Life is precious. But the virtues in a society that set it apart as wholesome, decent and ethical are those which nurture and value that life. They are the qualities of tolerance, understanding, forbearance and, dare I say it, love, which are such precious commodities. They engender and sustain compassion and ensure a growing humanity, a more civilised society for the living, that shields and truly values life.