Controls on Legal Highs

Alan Campbell Excerpts

Thursday 9th September 2010 Westminster Hall

[Mr Alan Campbell (Tynemouth) (Lab)]

I welcome you to your role as Chairman, Mr Davies, particularly as this is your first debate in that role. I can imagine that the Minister’s heart sank when he saw you coming into the Chamber, given your robust and independent manner. When you sat in the Chair he probably relaxed slightly.

I was not going to respond to the hon. Member for Enfield, Southgate (Mr Burrowes), but I shall briefly say that I hope he will reflect on the opening comments of his short speech, because he is usually a thoughtful contributor to debates. To start by saying what a difference an election makes and then completely to misunderstand the history of the issue did not do him any credit on this occasion, unusually. That is not least because Professor Nutt’s disagreement was with the previous Government, not the current Government—I do not know his views on the current Government’s drugs policy—but the Minister was gracious enough in his opening remarks at least to allude to the continuity that is important in these matters. I was grateful for the support that his party in opposition offered on the important matter of drugs and legal highs. We had our disagreements but I think there was much more support than difference. I hope that we shall be able to offer the Minister that degree of support. Perhaps if the hon. Member for Enfield, Southgate had been here for the opening remarks he would not have said what he said.

The debate is timely and has allowed the Minister to build on his announcement of last month about legal highs. He has set out the programme by which the Government want to tackle the issue, and, as I have said, we want to be as supportive as we can be. I share the nervousness of my hon. Friend the Member for Barrow and Furness (John Woodcock) about continually using the term “legal high”, but I suppose they are legal until they are not legal. I hope that someone can come up with a new term, but that is not the real point, which is how to tackle the emerging problem quickly enough to avoid the harm that in some cases is already being done, particularly to young people. The Minister knows that we share the Government’s concern about legal highs. We also share their broad approach, including in relation to consultation. If it is built on the pillars of preventing drug taking, disrupting supply, strengthening enforcement and promoting drug treatment there is a lot that we can agree with.

There is common cause in tackling legal highs not just because it is the right thing to do but because the previous Government began that journey, in relation to spice, GBL and mephedrone. I am grateful for the update from the Minister on how he sees that ban working out. I was encouraged by his remarks and look forward to hearing more. He knows, although there was an election in between, that we supported the Government with respect to naphyrone when they brought forward a ban in July. I am pleased that the generic approach is continuing, because that is the right one. It prevents manufacturers from tweaking compounds to try to stay ahead of any ban, and, in the words of the chair of the ACMD, it permits a systematic approach. That is important and I am reassured by the Minister’s assurance that it will continue.

I want to talk about the temporary ban, which has been the subject of comment in the debate. It is true that the introduction of a temporary ban would be a new development, but it is not an entirely new idea in discussions in this country, and it is part of the law in other countries. It may have the potential to make a real difference, not least in combating the frustration that is particularly acute among the families and friends of people who are victims of the relevant substances. I shall examine the temporary ban provisions, and we want to be as supportive as we can.

The Minister mentioned the importance of the press and other media, which is a double-edged sword, in my experience. The media can get involved when a substance such as Ivory Wave emerges, and give it publicity. They can campaign, as has happened in the past with some substances that we went on to ban, and can play an important part. The downside is that the media reaction is often to call for a very quick, if not instantaneous, response, without really understanding the need for evidence, and sometimes without even having the facts about what has happened to victims. If that provokes a knee-jerk reaction—that may be a danger with the temporary ban, if we are not careful—that will not be a good basis for drugs policy. We must be aware of that, but I know that the Minister does not operate in a media vacuum, and he will know from the trawl that his staff do through the newspapers and other media every day how those campaigns can take off.

As the Minister has said—I am grateful for the reassurance that there will be a degree of continuity in the way the issues are considered—it is important that the advisory council should be given time to examine the scientific and medical evidence for the harm that a drug might do, and then report to the Home Secretary, who would have time for due consideration. The problem with that approach, as we discovered, is that it takes too long and we get to the issues too late, as the hon. Member for Enfield, Southgate suggested, although not in a particularly helpful way. We knew about the need to act swiftly, and tried to do so. The new Government followed, in the case of naphyrone, and used a similar agreement to obtain the change in the law that we recognised was important. The matter will go further because, as I understand matters, the temporary ban will be a 12-month ban on imports, pending final advice from the advisory council. I want to ask in passing why the method that I think the Minister used, and which we certainly used for mephedrone, is not sufficient. That is, using the open general licensing system so that the existing legislation can be used. I think that I know the answer to that, but I should be grateful if the Minister could tell me.

The Government and various commentators have pointed to other countries that have temporary bans in place. Perhaps the Minister will help the debate by writing to hon. Members and listing those countries that have temporary bans and detailing the substances that are subject to those bans. New Zealand is the country most often mentioned but as far as I am concerned—this point was picked up by Professor Iversen in his comments to the Select Committee—New Zealand currently has no substances in the holding pen, or in class D or class X, or whatever one wants to call it. If his officials are looking again at practices in New Zealand, the Minister might also wish to look at the term “harm reduction,” which occurs more in New Zealand’s drug policy than in ours, particularly with reference to treatment. Perhaps it is possible to learn from that.

I would like to pick up on the point made by the hon. Member for Carshalton and Wallington (Tom Brake) and by my hon. Friend the Member for Barrow and Furness about what would happen if a substance were banned temporarily but then the ACMD—unusually, as this is unlikely—recommended that it did not need to be banned because it was not harmful. Would the Government be subject to a legal challenge from businesses that had not been able to import those substances? The issue might come back later. Those substances are not illegal—that is the whole point. Returning to the analogy with cocaine, we cannot say, “Well, those substances were illegal.” As I understand it, those substances would not be illegal because the legislation would not have been passed.

As hon. Members know, GBL was extremely dangerous, which is why it was banned. However, it contains a chemical that is used in hundreds and thousands of household and industrial products. If a substance such as that was the subject of a temporary ban, but then found not to be harmful, I shiver at the thought of what businesses might do. The Government must be aware of that—I am sure that they are—and they must have a defence in place when they present the evidence. What if the ACMD came to a different conclusion and the Government were left with a bill?

As I understand it, a breach of a temporary ban could mean jail sentence of up to 14 years and/or an unlimited fine for suppliers and manufacturers of a substance. If I remember rightly, that equates to the sentence for the supply of a class B drug. A legal high could find itself in that category, but there is no offence of possession. If the same substance was a class B drug and it was found in someone’s possession, there would be severe penalties. However, we are told that if someone possesses a substance that might end up as a class B drug, they would not be subject to those penalties even if there were a ban on possession. As I understand it, New Zealand has not gone down that route but there is an amnesty. After a six-month period, if someone is caught with a drug that has been temporarily banned, they are subject to the full force of the law under which possession is an offence. We must be careful with that issue.

To some extent, I agree with the Minister when he says that we do not want to criminalise young people. That was not our intention, and it is not the intention of the present Government. However, in going down that route, any Government will be in danger of sending out a mixed message and in relying entirely on the health reasons for why certain substances should not be taken, rather than having the back-up of the law and the penalties that come with that. There is an element of that in the way that many drugs policies are enacted on our street; agencies do not automatically go out of their way to criminalise young people as there are warnings and other things that they can use.

The Minister’s comments from 19 August have been seized on, even today, by some in the media and some bloggers—including some in the legal profession who should, quite frankly, know better—to say that that was the first step towards the legalisation of drugs for personal use. The Minister shakes his head, but I mention that so that in his concluding speech he can reassure me that that is not the case. The next step taken by the bloggers was to claim that they knew who was behind the policy, because the Prime Minister and the Deputy Prime Minister—and, we learn today, the hon. Member for Carshalton and Wallington—appear from their comments to have some sympathy with that view.

The hon. Gentleman accused me of wanting to say that the Liberal Democrats are soft on crime. I am not going to say that—this is probably the first occasion on which I will not say that. However, I would like a reassurance from the Minister that the coalition Government are not going soft on drugs. I do not think that they are, but I will give him the opportunity to reassure people. The subject is open to misinterpretation. When the Minister’s officials are found to have taken a particular interest in Portugal, which the hon. Member for Carshalton and Wallington picked up on, that raises the question of whether we are heading along a route towards the legalisation of drugs.

[Tom Brake]

Let me inform the hon. Gentleman that members of the Home Affairs Committee went to Portugal and Spain and therefore have first-hand evidence of what has been done there. I seek reassurance that when sound, factual evidence is produced to show what is effective in tackling drug crime and addressing health issues, the hon. Gentleman will sign up to that.

[Mr Campbell]

I cannot give the hon. Gentleman the assurance he seeks because he is sending me along a route he knows I cannot go down. There is a great deal of evidence that if we both studied this issue, he would reach one conclusion and I would reach another. The Government are looking around for all sorts of ideas from elsewhere—they are not the first Government to do that; all Governments do it. We are getting our schools policy from Sweden, although I gather that we are not getting our drugs policy from Portugal. It is no bad thing to learn lessons from abroad, but we need a drugs policy for this country that reflects the evidence and takes into account the views of the public. The hon. Gentleman’s view about public opinion on this matter is different from what I believe to be the case, yet we look at the same evidence. I cannot give him the commitment he asks for, but I support his call for a mature debate on drugs policy. That is what the consultation will do. However, if he thinks we have had an immature debate on drugs policy today, I disagree with him.

[Tom Brake]

Will the hon. Gentleman go on the record and confirm that if a policy is backed by clear, evidence-based research that shows the most effective way of tackling drugs to be something that the public do not support, he will back the public rather than scientific fact?

[Mr Campbell]

Politicians always think that they back the public because they hope the public will back them. The hon. Gentleman misses my point—perhaps I am not explaining it sufficiently to him. We can take the evidence, but we must also take into account what the public think about such matters. There is an argument to say that scientific evidence alone can be collected on the harm that a drug would do to someone’s health, and that the judgment can be made entirely from that. However, that is not the basis on which the advisory council is set up. Other factors must be taken into account, not least the attitude of the public, which I hope is informed by the evidence, as the hon. Gentleman suggests it will be. I hope we will get to that position. He and I disagree on this matter, as he believes the public to be in one place and I think they are somewhere else. The Government must be absolutely clear—the Minister has the opportunity to do this in his winding-up speech—and ensure that what is being suggested about legal highs is not open to misinterpretation, and that we are still following a tough approach that the Labour party will be pleased to support.

In reality, anyone can make an economic case for the legalisation of drugs. That is dead easy. Look at how much it costs to enforce drug legislation. Anyone can make that case even if they are amateurs at economics. However, if anyone believes for one minute that freer access to drugs will not lead to more drug abuse, they are mistaken. If anyone thinks for one minute, looking at the crime implications, that if drugs were legalised, drug traffickers would give up crime, they are mistaken, because the people who traffic drugs are criminals and will traffic whatever they can to make some cash out of it, whether it is people, substances or anything else, so we need to be very careful before we go down that route.

I want to say something about the practical aspects of the policy. My hon. Friend the Member for Barrow and Furness picked up on some of those points. The Minister mentioned trading standards. I know that if he has a similar portfolio to the one I had, he could give a different priority to trading standards every day of the week. Monday it could be alcohol sales; Tuesday it could be knife sales; and Wednesday it could be legal highs. That is not to diminish the importance of legal highs, but it says something about trading standards, which too often are the Cinderella services in councils. They are not the ones that are financed enough to do all these things, and if councils are facing the sort of cuts in their budgets that we have heard about, the Government must be absolutely clear that they are not offering anything, in combating legal highs, that will be delivered on the ground, because the people are not there.

The Minister talked, at least in the press releases that went out on this issue, about the shipments and importation of drugs, including legal highs, and he mentioned the importance of officers who work abroad, SOCA and others. I have seen them in the field, doing the work that they do, and I pay tribute to their work, because they are among the bravest people I have ever met. They often operate in very difficult circumstances. The hon. Gentleman reaffirmed the importance of starting our drugs policy not at our borders, but somewhere else in the world. That is very important, particularly at times when money is tight.

However, it is the internet that is very important when it comes to the buying and selling of legal highs. It is not a criticism of this Minister, because he knows more about tackling crime on the internet than most people, to say that Governments, by and large, are behind the curve on that. It is really difficult stuff. It is very difficult to work out how we tackle crime on the internet in the way that we can tackle crime in the real world, but it is very important that we do that.

Even if we can identify the suppliers, it is extremely difficult sometimes to find out what the substance is. The Minister talked about the problems with Ivory Wave. The situation was the same with mephedrone and other things. Forensic investigation is required; and more often than not, the cost of forensic investigation comes out of police budgets. Again, therefore, we must ensure that the Home Office is fighting its corner to make sure that the forensics budget is there for the police and, of course, that there are sufficient police officers to make it effective on the ground where it matters.

Communications is very important, but communications budgets in Departments are precisely the ones that the Government are examining to see what savings can be made. If that budget is under pressure in the Home Office, I say to the Minister—although he already knows—that FRANK is very good but it is not enough. There must be a communications budget that goes beyond the FRANK website. Again, this is about fighting the corner to ensure that when there is a campaign, for students or anyone else, it is financed and financeable; otherwise we offer something that we cannot deliver.

When the Under-Secretary of State for the Home Department, the hon. Member for Hornsey and Wood Green (Lynne Featherstone), introduced the ban on naphyrone, she was unable to say how much that ban would cost. To some extent, she got away with that at the time, because we were keen to ensure that the ban was in place, but it is a fair question: how much will the ban cost?

This Minister said—I support him in this—that the proceeds of crime, the assets of drug traffickers, should be targeted in tackling the problem. I agree, but we know how difficult it is to get at assets, particularly from drug traffickers, because they can hire the best lawyers as well as stashing those assets away in the names of friends and family. Targeting the proceeds of crime and seizing assets should be happening anyway. That is precisely what the assets legislation is in place for.

The Minister also knows—I imagine that he still has responsibility for proceeds of crime—that there is much debate about who gets the proceeds of crime. The Home Office used to get the first 50% and the rest was shared between the police and other agencies. If money is to be diverted into tackling drugs, which I think is a great reason for doing it, then unless more money is guaranteed, someone will get less. People have to be absolutely clear that they can deliver on that.

I have spoken for longer than I thought I would, but we have had a useful exchange of views—I hope so, anyway. My final point is this. I have had long discussions with my hon. Friend the Member for Gedling (Vernon Coaker), who was not only a well-respected drugs Minister but a very distinguished teacher. We talked at length about drug education, and I agree with the Minister: I think that drug education is very important. Many schools do have drug education and much of it is very good, but the question that we need to ask is whether it is effective. Is it actually, given the money that goes in—I am not advocating cutting it—effective? Is the money that goes in effective? I ask that because of the very bright and intelligent young people who have their lives ahead of them, who have huge potential, who have had drug education at school, who have gone to music festivals and stood in nightclub queues and been given information and who have got the message about the risk to their health, but who still take these substances. They put their health at risk and, in some cases, there are tragic consequences. They use legal highs alone. They mix them with other legal highs and other drugs. Sometimes they mix them with alcohol. As a Member of Parliament and as a parent, I am concerned. Why, when young people know the risks, do they still do that? If we can find the answer to that question, we will not spend quite as much time in this place talking about bans and legislation.

[James Brokenshire]

We have had a good, wide-ranging debate about legal highs. Various hon. Members highlighted the fact that even using that terminology brings about a misconception. To take the last point from the shadow Minister, the hon. Member for Tynemouth (Mr Campbell), about why people take drugs, including legal highs, when they know the risks, I think that that is part of the problem—they do not know the risks. The fact that something is branded as a legal high implies that it is safe. Therein lies part of the challenge in relation to these newly emerging psychoactive substances—I agree that that does not trip off the tongue, either—that highlights the important need to ensure that the legislation is there as a mechanism for telegraphing clear messages about enforcement of the law and about safety.

I noted the hon. Gentleman’s comments about mixed messages. I say to him very gently that his Government sent out very mixed messages about cannabis, so perhaps he is not in the strongest of positions from which to be pointing fingers about communicating messages.

[Mr Alan Campbell]

I just want to make a very personal point. The records show that in fact the very first time that the messages started getting mixed, it was not this Member of Parliament who supported that process.

[James Brokenshire]

I note the point that the hon. Gentleman has made, but clearly it was his Government who sent out some very mixed messages, even if he was not personally responsible for the decisions that underpinned them.

I want to cover as many as possible of the points raised during the debate, which has been helpful and constructive on the issues and challenges surrounding legal highs. It also touched on the drugs strategy from a broader perspective. I do not regard this as an opportunity for that broader debate, but it is important to recognise that the coalition Government are consulting on their new drugs strategy. We intend to publish the new drug strategy by the end of this year. Our strategic vision is set around the framework for the future delivery of drugs policy with four key themes, to which the hon. Gentleman has already alluded: preventing drug use; strengthening enforcement, criminal justice and the legal framework; rebalancing treatment to support drug-free outcomes, which is an important point to emphasise; and supporting recovery to break the cycle of drug addiction.

The Government are opposed to the legalisation of drugs and to decriminalisation for personal use. It would run entirely counter to our health and education messages. In many respects, the equation of safety with legality, as we have been debating on the issue of legal highs, makes that a very direct construct. On the possession of legal highs, I say to the shadow Minister that the temporary ban is, as it suggests, intended to be only temporary—a maximum of 12 months. If advice supports the classification of a drug within that 12-month period, we would act within that period. It may therefore happen in less than 12 months, which would then create the possession offence. Our approach with the temporary ban is to act quickly to stop supply and prevent harm, which is why we have tailored it as we have. It does not send out mixed messages, due to legality—in its broadest sense—being equated with safety. We have seen that and seen how the classification of drugs can have an impact on whether someone perceives a drug to be safe. That goes back to my original point on the equation of safety and knowledge, which has been highlighted.

We do not support the legalisation of drugs. Many drugs such as heroin and crack cocaine are clearly addictive and harmful to health, and our educational message, to young people in particular, is that illegal drugs are harmful and no one should take them. To legalise their supply for personal consumption would send the wrong message to the majority of young people, who do not take drugs on a regular basis, if at all, and, alongside that, it would increase the risk of drug use and abuse.

On the specific point about the Portuguese model, we are against that proposal. The Government are determined to prevent drug use and strengthen enforcement against supply, which is why we are asking experts for their views on a range of issues, so that users are strongly encouraged to address their dependency. That wider debate and consultation is taking place, but we are not looking at the Portuguese model, and do not think that it is the right way forward.

--- Later in debate ---

[James Brokenshire]

It is difficult to second-guess the issue or look into a crystal ball. We are in close consultation with the ACMD on the development of the working protocol, which I would not wish to pre-empt. In all the discussions I have had with the ACMD, it is clear that if a newly emerging psychoactive substance is identified, the intention is that advice would be sought on the associated harms. We would seek its advice on whether a temporary ban would be appropriate, so it is about working around that and the identification. Hon. Members also made points about the early warning system, and working with the ACMD on that and picking up things early enough to deal with appropriately.

[Mr Alan Campbell]

I am genuinely confused, but I am sure that the Minister can put my mind at rest. If a substance is subject to a temporary ban, why is it illegal to import or supply it, with fairly draconian penalties, but not illegal to possess it?

[James Brokenshire]

I thought I had already explained the position. I am sorry if I have not made it clear. The emphasis behind the policy is about ensuring that we stop the supply, importation and sale of the drugs and about ensuring that we can act quickly to deal with some of the challenges that I know the shadow Minister faced in Government over mephedrone. Perhaps I share his frustration at being told by the ACMD that there was a problematic psychoactive substance and feeling that one is unable to respond. There are certainly issues; he highlighted importation issues and the general licence that could be invoked, but that does not tackle domestic supply. To ensure that drugs do not get on to the streets and into the hands of young people, it is important to deal with the problem at the border and in this country. That is why we believe that the temporary ban approach is the right way forward when a newly emerging psychoactive substance that has been indentified as harmful comes through.

I would like to address the issue of whether a newly emerging substance has other uses. It is fair to make that point, and the Government will seek parallel advice from the Department for Business, Innovation and Skills on a drug’s legitimate use and will develop any required impact assessment, which will inform the decision on whether to impose a temporary ban on that drug. In the event that a legitimate commercial use is identified in discussions with the Department for Business, Innovation and Skills, the Home Office will take reasonable steps in the light of the ACMD’s advice on the risk to public health when a substance is misused, to ensure its continued availability for legitimate use under the temporary ban and, subject to further consideration, under circumstances in which that ban is made permanent. There are examples showing how that approach could be taken. It is important to recognise that point, and advice will be sought from the Department for Business, Innovation and Skills and the ACMD in relation to the application of those powers.

My hon. Friend the Member for Enfield, Southgate (Mr Burrowes) raised the issue of what other countries are doing, and gave the specific example of Ireland. I am aware of the changes that are taking place there and of the fact that the Irish are considering a broader definition of drugs. We can look, too, at the example of the United States and the analogue legislation that is in operation there. The Advisory Council on the Misuse of Drugs is considering the broad policy issues and the various different examples. Although I cannot comment on whether it is looking at the Irish situation, it is doing broader work on legal highs. We await its report on appropriate approaches, which may take into account factors such as a broader definition. I do not want to prejudge or pre-empt the work of the ACMD, but we appreciate the work that it is doing, and look forward to its response. Certainly, we are considering a proportionate response based on the tenets of harm before imposing criminal penalties.

The hon. Member for Tynemouth asked whether other EU countries had taken different approaches on temporary bans. The experience is that those countries have tended to take a very narrow perspective on the utilisation of temporary banning powers. Spice was one of the cases in point. In this country, we have sought to take a more generic approach to a class of drugs, so that we avoid the issue of tweaking and slight chemical manipulation. The temporary bans and the immediate action that were taken in some other EU countries were much more narrowly focused, so we are not comparing like with like in that regard. The approach that we hope to take is very much looking at that broader categorisation rather that at one specific drug alone, without necessarily considering the anologies that may exist alongside all of that. That is very much part and parcel of the work that we would adopt.

I have a couple of things to mention in relation to the New Zealand case. I am advised that its class D is currently empty, but that could be a reflection of the fact that New Zealand has not had to respond to legal highs in the way in which the United Kingdom has. It is difficult to make cross-over judgments. Moreover, the class D model envisages a regulated supply as well, which is not the approach that the UK seeks to adopt.

The hon. Member for Carshalton and Wallington highlighted the issue of khat. The Government acknowledge the concern in communities affected by khat use, particularly in relation to the social problems, which include unemployment, family breakdown and financial hardship. We are committed to addressing any form of substance misuse and will keep the issue under close scrutiny. Home Office research into the social harms of khat use, as well as the treatment needs of users, was commissioned last year by the previous Government, and it looked at a number of communities and areas in England and Wales. We are quality-assuring the work and will produce an independent review of the findings, as is standard practice with all Home Office research reports. We will publish those reports later this year and consider them carefully.

This has been a positive and productive discussion on a sensitive issue that has impacted on far too many communities. Reflecting on conversations with parents of children who have been adversely affected by drugs and with those who have lost very close loved ones, I can say that they underline the importance that we must place on addressing the harms linked to these so-called highs. It is incumbent on us to continue to send out the message that simply because something is marketed as legal does not necessarily mean that it is legal, and above all it certainly does not mean that it is safe.

Question put and agreed to.