Policing and Crime Bill
Baroness Chisholm of Owlpen Excerpts(8 years, 3 months ago)
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Lord Rosser
I thank the noble Earl for explaining to me prior to today the purpose of his amendments and the objective they seek to achieve. The noble Earl has made his case in very clear and cogent terms. I, too, would very much like to hear the Government’s response.
Baroness Chisholm of Owlpen (Con)
My Lords, a key element of the recently announced fire reform agenda is the creation of a new independent inspection regime for fire and rescue. Amendments 120 and 122, tabled by my noble friend Lord Lindsay, relate to persons and bodies appointed by the chief fire and rescue inspector and an English inspector respectively to deliver the inspection function.
The Government do not believe that Amendment 120 is necessary. Clause 11 is modelled on provisions for the inspection of policing and is deliberately broad to provide the chief fire and rescue inspector with flexibility in who they may appoint as an assistant inspector, or other officers, for the purpose of assisting English inspectors. The Government could have listed certain professions or qualifications in the Bill for who could be appointed, but that would be interpreted as an exhaustive list, or would influence the chief inspector on their appointments. Therefore, I assure my noble friend that there is nothing stopping the chief inspector appointing persons covered by his amendment—indeed, there may be some merit in their doing so if needed—but the amendment does nothing to further the Bill as such persons are not precluded.
Turning to Amendment 122, this issue was raised during the Bill’s Commons Report stage. My ministerial colleague, the Minister for Policing and the Fire Service, has exchanged letters with Bob Neill MP and Jim Fitzpatrick MP since then. Therefore, my comments will come as no surprise.
Whereas Amendment 120 deals with the appointment of individuals, Amendment 122 to Schedule 3 covers the appointment of bodies as the recipient of delegated functions. Paragraph 2 of Schedule 3 allows for an English inspector to arrange for the inspection function to be exercised by another public authority on their behalf. This provides a degree of operational flexibility, depending on the inspection model chosen, but it is simply not appropriate for government inspection functions —regardless of what or who they are inspecting—to be delivered by a non-public body. Importantly, for an inspectorate to undertake robust inspections they must have access to information, premises and persons—powers granted in statute. I do not doubt the high standards private bodies operate to, but such invasive powers should be delivered only by those holding public office to avoid any conflict of interest and ensure proper accountability for the exercise of such powers.
I recognise the valuable role UKAS provides in giving confidence to both the public and private sectors as to a person’s competence, consistency and impartiality. However, we deliberately did not add a prescriptive list to the Bill to avoid any constraint on the chief inspector appointing whoever they consider necessary and appropriate. As I said, there is nothing to stop external experts being sourced, including from the bodies covered by these amendments, but this constraint is important. In view of that, I invite my noble friend to withdraw his amendment.
The Earl of Lindsay
My Lords, I am grateful for my noble friend’s response and look forward to reflecting on the detail of what she said in due course. It might be useful if there were some discussion between UKAS and the Home Office to make sure that anything that UKAS’s activities can do to support the new inspectorate is developed. I am also mindful that the Home Office will consult on the proposals for the new inspectorate later in the year. That is another opportunity for useful discussions. On that basis, I beg leave to withdraw my amendment.
Policing and Crime Bill
Baroness Chisholm of Owlpen Excerpts(8 years, 3 months ago)
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Lord Adebowale (CB)
I support the amendment moved by the noble Lord, Lord Rosser. I have some experience of the police and their responses to mental health as chair of the commission on the Met’s response to mental health policing in London which—I hesitate to claim credit—led to the concordat mentioned by the noble Baroness, Lady Hamwee and the noble Lord, Lord Rosser. It is important that mental health is included in reference to collaboration because those people are at the sharp end of the inverse care law when it is not. I am concerned and would like to know more about the Government’s intentions in this regard. I support the amendment.
Baroness Chisholm of Owlpen (Con)
My Lords, I am grateful to the noble Lord, Lord Rosser, for explaining the rationale for this amendment. I feel sure he would agree with me that we are already seeing how much of a difference the concordat is making in developing and improving the response to people who experience a mental health crisis. This includes improving the accessibility of local preventive mental health services and reducing the number of times a police cell is used as a place of safety for a person detained under the Mental Health Act. As the noble Lord, Lord Rosser, stated, we shall have an opportunity to debate that issue further when we reach Chapter 4 of Part 4 of the Bill.
These are important developments that should be supported and encouraged, and I recognise the noble Lord’s intentions in proposing such a requirement. However, we must also recognise that the strength of the concordat is the flexibility that comes from it being—here is the nub—a local voluntary agreement. This means that all local partners who can make a difference can be involved, which will vary from area to area, and enables every local concordat partnership to agree actions that make sense in its area.
I will give some examples of how it is working. In Greater Manchester, local concordat partners have worked with the charity Self Help to create three places of calm where people with mental health concerns can go at unsociable hours and receive the support that will hopefully avert a crisis. In Sussex, which sees the emergency services respond to a particularly high volume of crisis incidents, the partners are working directly together in street triage schemes in most of the main towns. The triage approach has saved lives, notably at Beachy Head, where, as we know, a lot of suicides have been recorded. In the West Midlands, the police, ambulance and mental health trust share details of people who frequently call them in distress and jointly review the care being offered to them. In many cases these people are now following a constructive care plan instead of phoning in at least four times a day.
As the concordat is a voluntary agreement and does not, as such, impose specific duties on its signatories, we believe that this amendment is misconceived in suggesting otherwise. I would also question the appropriateness of singling out mental health crisis care in the Bill to the exclusion of other areas where collaboration agreements could lead to improved efficiency and effectiveness in the delivery of front-line services.
Our local emergency services are acutely aware of the need to appropriately and compassionately respond to those in mental health crisis. I have already pointed to a number of excellent examples of collaboration between emergency services. The provisions in the Bill will encourage and support further such collaboration, and although the noble Lord is right to flag this as an important area where local agencies need to work better together, I am not persuaded that adding this amendment to the Bill helps to secure such an outcome.
Lord Harris of Haringey
The noble Baroness keeps talking about the strength of the concordat, and I do not think any of us disagrees about its importance and potential value. However, she will be aware of figures that have been released by the National Police Chiefs Council, which show that in the last year the police use of Section 136 has increased by almost 20%. Earlier in her remarks, she cited the improvements in Greater Manchester, where the use of Section 136 increased by 2.3 times in the last year. Where exactly is this improvement that she describes happening? Given that there are perhaps some problems with the delivery of the concordat—probably more in the availability of mental health services than necessarily in the response of the emergency services—is that why the Government are so reluctant to see the concordat mentioned in the Bill?
Baroness Chisholm of Owlpen
No, that is not the reason. As I was saying, the strength of the concordat, which is making real changes in many places to services at the local level, is the flexibility that comes from it being a local voluntary agreement. That is its main strength: it means that all local partners who can make a difference can be involved, rather than having an inflexible list of partners set out in law. Similarly, this enables every local concordat partnership to agree actions that make sense in its area.
Lord Harris of Haringey
The noble Baroness seems to miss the point. If the concordat is working so well, why has the police use of Section 136 increased by 20% in the last 12 months? Why has it increased by 2.3 times in Greater Manchester?
Baroness Chisholm of Owlpen
I cannot answer that. We have to give these agreements time to work; a lot of them are quite newly put together, and it may well be that it has not been worked out where they need specific people to deal with the problems that are happening. On the whole, where they are working, they are working well. They have led to collaboration between the police and all the emergency services, such as the health service, to come together to find where they need extra help in the areas where they have problems.
Lord Adebowale
I understand the point that the Minister is making but I wonder whether she might comment on this question: in areas where such concordats do not exist, are the Government willing to accept that those with mental health challenges will receive a poorer service? Do they accept that if you happen to live in an area where the voluntary agreements have not come together, you get a poor service? If the concordat is doing as well as she states, why should it not be in the Bill so that everyone can benefit?
Baroness Chisholm of Owlpen
I am not suggesting that where there is no concordat, people are not receiving good help. The whole point is that you do not have to have a concordat; it is voluntary. That is the strength of it. It is not always necessary to intervene in everything. People should be allowed the flexibility to organise their arrangements as they feel fit for their area.
Lord Harris of Haringey
In her earlier remarks, the Minister specifically referred to Greater Manchester. There, the number of Section 136 cases has increased by nearly two and half times in the last year. If the example that she cited of the concordat working well has delivered an increase of 2.3 times in the number of Section 136 referrals, what does that imply constitutes doing badly or failing to work at all?
Baroness Chisholm of Owlpen
I am sure the noble Lord is correct that the use of Section 136 has gone up in the 2015-16 data, but perhaps that is not necessarily a negative. It could be that it reflects better understanding between the police and their partners of what is happening. From statistics that I have, the use of police cells as a place of safety is down by 50%, so that must show that something is working well somewhere. I invite the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for her response, and I thank noble Lords who have contributed to this debate. I say before I go any further that I will of course withdraw my amendment. I accept that in later clauses we will undoubtedly have a much fuller debate on the police, the provisions of the Mental Health Act 1983 and the changes proposed in the Bill.
I have to say I am slightly disappointed with the response. It did not seem to me that the amendment I moved sought in any way to alter the terms of the concordat or indeed to fix what those terms should be. I accept that the concordat is a voluntary local agreement but, as I understand it, so will be most of the collaboration agreements that we have been talking about, and in that sense they will be on a statutory footing. All my amendment asked was that, in considering effectiveness and efficiency, the impact on the effectiveness and efficiency with which the emergency service is able to meet its duties under the mental health crisis concordat should also be taken into account. I do not intend to push the matter further at this stage; there will be an opportunity for a further and, I am sure, much longer discussion of these issues later.
My final point is that I said that I understood that on 22 March, the Minister referred to an inter- ministerial group having been formed during the previous Government, with the inference that it was dealing with the kind of issues on which the amendment touches. I should be grateful, if the noble Baroness cannot answer the question about what the group is doing, has achieved and hopes to achieve—I fully understand if she cannot—if she would agree to write to me with a response.
Baroness Chisholm of Owlpen
Yes, I apologise to the noble Lord for not getting back to him on that; I will have to write to him, as I am not quite sure to what he is referring.
Lord Hope of Craighead (CB)
My Lords, I suggest that the Government might like to look favourably on Amendment 8, in particular. One should focus on the word “varied”. If an agreement is varied by something else, the original agreement survives—it is simply changed a little and varied in form. Clause 4(8) refers to a collaboration agreement being varied by a “subsequent collaboration agreement”. The word “varied” should really be “replaced”, because you then have something different. So there is force in the noble Baroness’s amendment, which is small but neat way of expressing what everyone agrees should be done. The agreement should be capable of being varied; my point is that the original agreement survives, but with a small or large change made to make it more effective. For those reasons, I support that amendment.
Baroness Chisholm of Owlpen
I thank noble Lords for taking part in this debate. I understand from the noble Baroness, Lady Hamwee, that these are probing amendments designed to tease out how collaboration may be varied. It is of course vital that collaboration agreements can be amended where appropriate to reflect local developments and to ensure the best outcomes for the public they serve. There may be a number of reasons to vary a collaboration agreement, perhaps to include a new partner to the agreement or to change participant roles and responsibilities. Clause 4(8) is simply intended to make it clear that such variations may be made. In locally agreeing to vary the terms in an existing collaboration agreement, the parties will in effect create a new or subsequent collaboration agreement. Such an agreement would be subject to all the provisions that pertain to collaboration agreements. I hope that clarification reassures the noble Baroness and that, accordingly, she will be content to withdraw her amendment.
Lord Hope of Craighead
With great respect to the Minister, she did not address my point. One has a choice: either one varies an agreement or one replaces it with something else. The example given is a very good one of a variation, leaving the existing agreement in place. We are at a very early stage of this Bill and all I am suggesting is that the amendment might be taken away and looked at again. It is a question of the proper use of the English language, which is why I have taken the liberty of standing up and making my point.
Baroness Chisholm of Owlpen
Certainly. I feel I must bow before the noble and learned Lord’s incredible intelligence in these affairs. I cannot possibly completely disagree with what he says because he is way above my intellect. Of course we can go away and look at this.
Baroness Hamwee
My Lords, that is very helpful. The noble and learned Lord makes the argument far better than I did. I will attempt to rope him in on future amendments. As I said, it became not a probing amendment in the course of that exchange. I want to make it clear that we are not at all arguing against the variation of collaboration agreements—that would be intellectually incoherent. That is not the purpose of this. For the moment, at any rate, I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, the noble Baroness, Lady Hamwee, has indicated that these are probing amendments, designed, in the cases of Amendments 14, 32 and 100, to provide some reassurance to those persons to whom a liability is owed that they will not be disadvantaged by a scheme transferring the liability. I appreciate that assurances on liabilities are important when considering arrangements for their transfer from an existing fire and rescue authority to a new PCC-style FRA or to a chief constable.
Statutory transfer schemes of this kind are well precedented. Indeed, I might add that the Police Reform and Social Responsibility Act 2011 directly transferred all property, rights and liabilities of the old police authorities to the new police and crime commissioners or other local policing body. We have adopted the usual approach here of not requiring the consent of affected persons to the transfer of property, rights and liabilities. Once a Section 4A order is made, the existing fire and rescue authority will cease to exist and it is therefore right that all property, rights and liabilities held by the existing FRA should be transferred. If a person to whom a liability was owed was given an effective veto as to the transfer, that would arguably necessitate the preservation of the existing FRA alongside the new PCC-style FRA. This is a recipe for confusion and muddle.
However, I reassure the noble Baroness that the new PCC-style FRA, or the chief constable, to whom liabilities are transferred will take on the contractual obligations in respect of those liabilities, including, for example, the repayment of any debt. The person to whom the liability is owed will not be disadvantaged.
On Amendment 15, I hope I can reassure the noble Baroness that the approach taken in the Bill to the modification of a transfer scheme is the right one. The power to make modifications is designed principally to ensure that, should it be necessary, corrections may be made to a transfer scheme, particularly to address any errors made regarding the persons to whom rights or liabilities have transferred. As I am sure the noble Baroness appreciates, such transfer schemes can be complex and it is important to safeguard the ability to make revisions. These would need to be effective from the date at which the transfer came into being, rather than the date when the modification was made. To provide otherwise would risk disadvantaging a person, for example, to whom a liability was owed. I assure her that such modifications will be made only where there is agreement to do so between the affected parties.
On the basis of these reassurances, I trust that the noble Baroness will be content to withdraw her amendment.
Baroness Hamwee
My Lords, that is very helpful, and I do indeed beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, I recognise that there are quite a lot of amendments in this group. It is more like reading War and Peace than a group of amendments but not quite as gripping or enjoyable. However, as my noble friend Lady Williams explained in her letter of 7 September to the noble Lord, Lord Rosser, these amendments are essentially minor and technical in nature, and ensure that the provisions in Part 1 of the Bill can operate as intended.
In particular, the amendments ensure that the provisions in respect of the new PCC-style fire and rescue authorities, whether operating under the governance model or single-employer model, are properly aligned, with appropriate modifications, with existing statutory provisions relating to policing and fire and rescue authorities. For example, the amendments apply the existing provisions in the Police Reform and Social Responsibility Act 2011 in respect of the handling of complaints against PCCs to the new PCC-style FRAs. This ensures that complaints against a PCC, whether in respect of his or her policing or fire and rescue functions, are handled in a consistent fashion.
I should also single out Amendments 38 and 105, which are subject to amendments tabled by the noble Lord, Lord Paddick. The Bill already provides in new Section 4L of the 2004 Act a power to apply, with any necessary modifications, relevant legislation relating to police and crime commissioners to a PCC-style FRA. Similar powers are needed to apply, with any necessary modifications, relevant provisions of fire and rescue-related legislation to the chief officer and his or her staff where the single employer model is in operation.
These new order-making powers would be used in particular to ensure that references to employees of an FRA can continue to operate as intended under the single-employer model, where they will become employees of the chief constable—for example, to ensure that they have the relevant powers and functions necessary to perform their fire-fighting functions. A similar power is taken in respect of the single-employer model under combined authority mayors.
At this point, I suggest that the noble Lord, Lord Paddick, speaks to his amendments, and I will then respond. I beg to move.
Baroness Hamwee
My Lords, we indeed have amendments at the various points at which there is reference to the application of an enactment with or without modifications. I apologise to the Committee that two of the amendments were published only this morning. They were tabled at the same time as the others and I do not know at what point they got lost—there is no particular significance in that.
I missed whether the noble Baroness in her reference to existing legislation was using the term “necessary modifications” as a quote from legislation or whether it was an assurance. If it is in other legislation, that makes my case; if not, I am not clear where the assurance will be in the Bill that the modifications will be “necessary” only for the purposes that she explained. On the face of it, to be able to apply an enactment with, by definition, unnecessary modifications, gives the Secretary of State a very wide power. I am sorry if I am being dim. It is entirely possible that I have lost the plot, but assurances not just from the Dispatch Box but in the Bill as to how the power will be used would be the most desirable way to go.
Baroness Chisholm of Owlpen
I am grateful to the noble Baroness for explaining her amendments. She explained that they are designed to seek further clarification of the scope of the order-making powers conferred on the Home Secretary to enable provisions of local policing and fire and rescue enactments to be applied to a PCC in relation to their fire and rescue functions, and to a combined authority mayor, where they are exercising the single-employer model.
The ability to apply provisions for such enactments with or without modifications is important to ensure that PCCs and combined authority mayors have the necessary powers and duties to exercise their functions effectively. This may include the ability to make consequential modifications as well as those that are necessary in the strictest sense to enact the arrangements contained within the PCC’s fire governance proposal.
I reassure the noble Baroness that the Home Secretary would need to exercise these powers reasonably and rationally and would do so only on the basis of applying provisions that are consequential on the implementation of either the governance or single-employer models. The Joint Committee on Statutory Instruments will also play an important role in scrutinising the use of the delegated powers and would make a report if in its view the Home Secretary had acted outside her powers or used them in an unusual or unexpected way. I should add that the Delegated Powers and Regulatory Reform Committee did not raise any concerns in respect of the existing order-making powers in the Bill relating to local policing enactments.
On the basis of these assurances, I hope that noble Lords will support the government amendments.
Baroness Hamwee
My Lords, I thank the noble Baroness. She seemed for most of her response to be making my case for me. I noted that the Delegated Powers and Regulatory Reform Committee had not commented on this—but, undeterred, I ploughed on. I will want to read precisely what she said, but I think that the important point is about the reasonableness of any modification made by the Secretary of State and how it relates to what she and I are both describing as “necessary”. I will not pursue the point this evening, but it is no reflection on her if I say that an assurance that the Secretary of State will do the right thing does not cut it for me with legislation.
Psychoactive Substances Bill [HL]
Baroness Chisholm of Owlpen Excerpts(9 years, 5 months ago)
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Lord Rosser
I shall be brief, but we have an amendment in this group, which states:
“Regulations under this section providing for medical research activity to be excluded from the application of the offences under this Act shall be laid before each House of Parliament within one week of sections 4 to 10 coming into effect”.
Something that has been referred to already is the letter that was received from the Advisory Council on the Misuse of Drugs. One point made in that letter was that the Bill could,
“seriously inhibit medical and scientific research on psychoactive substances”.
We have had the response from the Government in a letter to me, in which they referred to the views of the Advisory Council on the Misuse of Drugs. I take it that that includes the views of the advisory council on the Bill’s potentially seriously inhibiting medical and scientific research on these substances. The Government’s letter said:
“So that we can properly consider the ACMD’s advice, we now propose to defer tabling Government amendments on these issues until the Commons stages”.
On the basis that that is still the position—and I hope that the Minister will be able to confirm that the Government are still looking at the matter of the impact on research with a view to tabling amendments in the Commons—that would certainly suffice with regard to our Amendment 23, if the Minister can give that assurance.
Baroness Chisholm of Owlpen (Con)
I thank noble Lords for all their points. As discussed in Committee, there is common ground between these amendments and the Government’s position. As I said in Committee, it is the Government’s absolute and determined objective that bona fide medical and scientific research should be untouched by the provisions of the Bill. We will deal with the issue of research on cannabis when we reach Amendment 25.
It is already the case that broad swathes of research involving psychoactive substances fall outside the blanket ban. If a substance is not intended for human consumption for its psychoactive effects, it will not be caught by the Bill. Paragraph 3 of Schedule 1 exempts investigational medicinal products used in clinical trials. However, I understand, and the Government fully accept, that this exemption does not go far enough. This is an issue of some concern for the academic and scientific community. The noble Baroness, Lady Meacher, referred in Committee and again today to the letter in support of her Amendment 12 sent to my right honourable friend the Home Secretary by the Academy of Medical Sciences and five other leading scientific institutions. My noble friend Lord Bates responded to that letter yesterday. I shall read out the critical paragraph in that response:
“We have now had some further discussions with the Department of Health and the Medical Research Council. In going forward, we need to ensure that any amendment to the Bill satisfies the scientific community as represented by the Academy of Medical Sciences and your co-signatories, as well as our own policy and legislative requirements. For this reason, we intend to develop this work in the coming weeks with a view to introducing an amendment when the Bill is considered by the House of Commons. To help achieve this I would value engagement between your representatives and officials from both the Home Office and the Department of Health to reach a common understanding and satisfactory outcome in the next few weeks”.
I hope that that will reassure noble Lords that we are firmly committed to bringing forward an appropriate amendment on this issue, but it will take more time to get it right in consultation with the Academy of Medical Sciences, the Advisory Council on the Misuse of Drugs and others. We need to ensure that bona fide medical and scientific research is excluded from the ambit of the Bill, while not creating a loophole for others, whose only purpose is the recreational use of psychoactive substances, to exploit.
Amendment 11 is on a different point raised by the noble Baroness, Lady Meacher, in seeking to expand the definition of medicinal products, and therefore the exemption for such products, in paragraph 2 of Schedule 1. The noble Baroness is pushing at an open door here. As I also indicated in Committee, this is another area we are considering further with the Department of Health and the Medicines and Healthcare Products Regulatory Agency.
We are conscious that the Bill as drafted does not include unlicensed medicines for human use known as “specials”. These are lawfully manufactured, imported, distributed or supplied for the treatment of individual patients after being ordered by a range of healthcare professionals, not just doctors. As such, they need to be taken out of scope of the definition of a psychoactive substance.
In its letter to the Home Secretary, the Advisory Council on the Misuse of Drugs specifically raised concerns about the scope of exemption for herbal medicines. The European Herbal & Traditional Medicine Practitioners Association has also flagged a need to ensure that the exemption for medicines includes herbal medicines used by practitioners on a named-patient basis. This is another area where we are actively reviewing whether we need to adjust the current definitions in the Bill.
Medicines legislation is a complex area, as I know noble Lords are aware, and defining bona fide research is not as straightforward as one might imagine. We have certainly not so far been able to identify an off-the-shelf definition in existing legislation which we can readily apply. It is regrettable that we have not been able to table amendments in time for the House today, and I fear we will not be in a position to do so for Third Reading next Monday. I ask noble Lords to bear with us. We will use the time over the Summer Recess—no holidays for us—to bring forward appropriate amendments in the Commons. I will ensure that noble Lords taking part in this debate have sight of those amendments. Your Lordships’ House will then have an opportunity to consider the issue further when the Bill returns from the Commons in the autumn.
I hope that, in the light of that commitment, the noble Baroness, Lady Meacher, will be content to withdraw her amendment.
Baroness Meacher
My Lords, I thank noble Lords who have spoken in this debate. I thank the Minister for her reassuring comments, her assurance about the Government’s commitment to ensuring that all bona fide medicines and research will fall outside the scope of the Bill, and her assurance that the Government will consult key experts to ensure that the Bill is right in this respect. On that basis, I beg leave to withdraw the amendment.
Psychoactive Substances Bill [HL]
Baroness Chisholm of Owlpen Excerpts(9 years, 5 months ago)
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Baroness Meacher (CB)
My Lords, I shall speak to Amendment 56, which refers to Clause 56(2)(a). It is a probing amendment along similar lines to Amendment 21. As there are three different ways in which possession can become a criminal offence, the aim of the amendment is to clarify with Ministers the circumstances in which possession is not a criminal offence and those in which it is. I thank Mr Fortson QC for his briefing on this issue.
The Government have emphasised that the Bill does not make simple possession of a psychoactive substance a criminal offence, and I and many others certainly welcome that important step forward in the Bill. We know from the lengthy experience in Portugal, for example, that decriminalising possession there and investing more resources in treatment and less in prisons has resulted in fewer young people being addicted to drugs. That is surely one of our primary objectives. I find it enormously positive that the Government understand that issue and are taking it forward in the Bill.
As I said, there are three situations in which possession can become a criminal offence. If a person produces a psychoactive substance at home, for example by cooking something up in the kitchen, and they intend to consume it purely by themselves, they will have committed an offence. I want to make clear to your Lordships that I am not suggesting that anyone should cook up a psychoactive substance in their kitchen, albeit I have a number of friends who do just that—they create interesting and highly intoxicating alcoholic beverages in their kitchens. It is very easy to be rather hypocritical about these issues. Nevertheless, I wanted to make the point. It is not that I am promoting the idea of young people getting into the kitchen and creating these things. However, one has to think about the inconsistency.
If a young person is thinking about getting hold of a psychoactive substance and goes out to a dealer, buys a substance and goes home, they will not be committing a criminal offence if they are found with the substance in their hand. If they are found to have created, or are creating, the substance at home, they will be committing a criminal offence. It is possible to say that it could be very much safer for a young person to take a substance when they know its ingredients, rather than go to a crack dealer. I gather that that is what has happened in Ireland. As the head shops have closed, young people have gone to the crack dealers, who are doing a nice business with these psychoactive substances. One has to think of the incentive effect of these kinds of inconsistencies.
It is not only a criminal offence to create a substance in your kitchen. It is also a criminal offence, as the noble Lord, Lord Paddick, said, to import a substance for your own consumption. It is also a criminal offence if you export a substance for your own consumption—which might seem a slightly peculiar idea, but it is in the Bill. To illustrate the point, if someone has a psychoactive substance in their pocket, they are not committing an offence if they are at home. However, if they go on holiday with the substance tucked away in their pocket because they have forgotten it is there, and if it is still in their pocket when they come back, they will have committed two offences: importing and exporting a psychoactive substance. I know that that sounds a ludicrous example but one has to be conscious of the kinds of things that arise out of inconsistencies in legislation.
I understand from Mr Fortson QC—I would not have been aware of it otherwise—that this issue is of some importance. The offences to which I have referred are apparently described as lifestyle offences. Therefore, they trigger the most draconian provisions of the Proceeds of Crime Act 2002. Either the prosecutor or the court could initiate confiscation proceedings under POCA for one of these offences of possession of a psychoactive substance. That would seem, certainly to Mr Fortson QC, to be an entirely disproportionate response to what appears to be a rather insignificant offence. It was he who suggested that I should at least raise this matter in the House and seek the agreement of the Minister to ask her officials to look into these inconsistencies and to explore whether there is a way of finding a resolution that would feel somewhat more comfortable.
Baroness Chisholm of Owlpen (Con)
My Lords, as the noble Lord, Lord Paddick, has indicated, Amendment 21 seeks to exclude from the importation offence in Clause 8, the importation of a psychoactive substance by a person for their own personal consumption. Amendment 56, in the name of the noble Baroness, Lady Meacher, aims to do something similar in that it seeks to exclude production for personal consumption from the scope of the offence in Clause 4.
The Government do not accept that there is an inherent contradiction between, on the one hand, making it an offence to import or produce a psychoactive substance for personal use and, on the other, not criminalising personal possession. The Bill is about tackling the trade in psychoactive substances, whatever form it may take, both domestically and internationally. The importation of psychoactive substances, particularly by post, is indisputably a key form of supply. To exclude importation for personal consumption, even assuming you could neatly carve such conduct out of the importation offence, has the potential to drive a coach and horses through the ban on importation. It would be an open invitation for individuals to import numerous small quantities, which they could then combine together for onward supply.
It is also important to mention that the proposal would impose a near impossible task on Border Force customs officials and National Crime Agency officers in policing the importation ban. It is obvious that it would be very difficult and time consuming for them to determine whether a particular consignment of psychoactive substances was for onward supply or for personal use. For example, a person could import a significant quantity of psychoactive substances at one time, claiming that it was a year’s worth of supplies for their personal use.
With a blanket ban, the Border Force will have a clear mandate to seize any substance likely to be consumed by any individual for its psychoactive effects, and where the importation is not for an exempted activity. This will enable it to stop these potentially dangerous substances entering the country. In fact, between 2014 and 2015, more than 3.5 tonnes of new psychoactive substances were seized by Border Force officers. This was a 75% increase on the previous year.
Once the Border Force has identified a consignment, it can then simply invoke its seizure powers and the substances will be subject to a forfeiture process. In appropriate circumstances, the National Crime Agency will wish to investigate further and seek prosecution of an individual for a Clause 8 offence.
I can assure noble Lords that, as for any offence, a prosecution for an offence under Clause 8 would be pursued only if the public interest test is met. This is clearly set out in the Crown Prosecution Service’s Code for Crown Prosecutors. The sort of questions that the prosecutor must ask him or herself when considering the public interest test include: “Is prosecution a proportionate response?”, “What is the impact on the community?”, and, “Was the suspect under the age of 18 at the time of the offence?”. I hope this reassures noble Lords that decisions to prosecute for any offence in the Bill will not be taken lightly and a number of factors will be considered.
Interestingly, the national policing lead has advised that the long-term focus of enforcement action will be on those sources of supply which caused the most harm to communities in terms of crime and disorder, or where they are connected with organised crime. Some of these considerations apply equally to Amendment 56, to the extent that it could open up a significant loophole which could be exploited. More to the point, I put it to the noble Baroness, Lady Meacher: do we really want to encourage people to manufacture psychoactive substances in their garden shed, or, indeed, their bath? I suggest not. Production is clearly a critical link in the supply chain and we should not tolerate it on any level, whether it is on an industrial or cottage-industry scale.
The purpose of the Bill is to clamp down on the supply of NPS, not to criminalise young people. A range of civil sanctions is available to law enforcement agencies which offer an alternative route to criminal proceedings as a means of tackling the production and supply of psychoactive substances. The use of these sanctions will enable law enforcement officers to take action swiftly to nip a problem in the bud or to adopt a more proportionate approach to low-level offending. It will be a matter for the relevant law enforcement officer to determine the most appropriate course of action.
I hope that has reassured noble Lords—
Lord Howarth of Newport
I just wonder whether the noble Baroness is not sending a rather confusing signal to people. She is saying, on the one hand, that it must be illegal to import a substance; on the other, she is saying—and I am glad she is, in a way—that the public interest consideration will come into play when decisions about the prosecution are to be made. She is saying that it will be illegal to do it, but she is dropping the very broadest of hints that you are not going to get prosecuted for it. Is that not rather confusing for people?
Baroness Chisholm of Owlpen
I did not mean to be confusing. People certainly will be prosecuted for it, but as I said, the use of these sanctions will enable law enforcement officers to take action swiftly to nip a problem in the bud or to adopt a more proportionate approach to low-level offending. So it will be a matter for the relevant law enforcement officer to determine the most appropriate course of action.
While Border Force will seek to intercept, seize and forfeit any consignment of psychoactive substances coming into the UK, the focus of any criminal justice response will be on cases in which there is evidence of greatest harm. Similar considerations would apply to the enforcement of the production offence. Given this, I trust that the noble Lord feels able to withdraw his amendment.
Lord Paddick
I am very grateful to the Minister for her response. Like the noble Lord, Lord Howarth, I am slightly confused. Clearly, the Bill is aimed at tackling the trade, but whether you buy your psychoactive substance from a website abroad or from a drug dealer on the street, it would seem that the Bill is aimed at tackling one part of the trade but not the other—unless I am confused about that, as I see the Minister and the expressions on people’s faces.
Of course Border Force needs to intercept these packages, which is why we are saying that this should be a defence rather than an exemption or not be an offence in itself. Clearly, if somebody is importing a large quantity and saying that it is a year’s supply, they would have great difficulty in convincing the courts that that defence was available to them.
There are two reasons for raising this issue. First, the Advisory Council on the Misuse of Drugs raised it. In point 5 of its letter, it states:
“The Bill has the potential to both criminalise and apply disproportionate penalties to many otherwise law abiding young people and adults”,
and it specifically mentions importation. Secondly, we wanted to get on the record, which we have achieved, the fact that the public interest test will be applied and that, hopefully, not many young people will end up with a criminal record as a consequence of these measures. On that basis, I beg leave to withdraw the amendment.
Lord Norton of Louth (Con)
My Lords, I would not dissent from the points that have been made about what should go into an annual report. I rise very briefly to comment on Amendment 55 and to commend my noble friend Lord Bates for tabling it; it is extremely helpful. He has already touched on it and the reasons for it, and I just reinforce that. The noble Lord, Lord Rosser, did not I think disagree with having the review, but suggested that there should be a second one later on. The point I would make is that there will be: most Acts are now subject to review four to five years after enactment, so this measure would come up for review at that point in the normal course of events. What we have here is an early review, which is eminently sensible in the context of this measure, and it is being done on a statutory basis. I have long advocated post-legislative review. I think it is an excellent thing and now, as I say, it has been brought in as a matter of course. But, where necessary, it is very valuable for it to be made on a statutory basis, for it to be included in a measure so that it is a firm provision. It will be reviewed within 30 months, which, in the context of the measure, is an appropriate period. I commend the Government for bringing this amendment forward.
Baroness Chisholm of Owlpen
My Lords, I undertook to reflect on the various amendments that were tabled in Committee. Having reflected, as the noble Lord, Lord Rosser, stated, we have brought forward Amendment 55 in this group.
As I indicated in Committee, post-legislative scrutiny of all primary legislation takes place three to five years after Royal Assent. We accept that there is a case here for special treatment. The Government are bringing forward their post-legislative scrutiny of this particular piece of legislation and will place a review of the operation of the Act on a statutory footing.
We remain firmly of the view that that the duty to undertake a review should be a one-off requirement, rather than a continuing annual requirement with all the costs that that would entail. We are not persuaded of the benefit of undertaking a bespoke review of this legislation year after year. I appreciate that the amendment in the name of the noble Lord, Lord Howarth, is not confined to a review of this legislation, but my point about the resource constraints carries ever more weight when one looks down the list of matters to be addressed in the noble Lord’s annual review of the Government’s drugs strategy.
Given these considerations, the Government’s amendment simply requires a review of the operation of the Act and places a duty on the Home Secretary to prepare a report on the review and lay a copy of the report before both Houses of Parliament within 30 months of the Bill coming into force. As noble Lords know, a period of 30 months has been specified in order to allow for the collection of up to two years’ worth of data post implementation.
The need for a review of the Bill was one of the issues raised by the Advisory Council on the Misuse of Drugs in its letter of 2 July to the Home Secretary. In the Home Secretary’s response, published yesterday, she said:
“The Home Office is keen to work with the ACMD and would welcome the opportunity to have an early discussion on both the scale and scope of the review having regard to resource constraints, and how to make best use of existing data and evidence”.
Until we have had those discussions with the advisory council, it would be wrong to commit now to the review taking a particular form. I can say that I would expect the review to cover much of the ground identified in the amendment moved by the noble Lord, Lord Rosser.
Turning to Amendment 54 in the name of the noble Lord, Lord Howarth, I agree that many of the issues he raises need to be looked at from time to time. That is why we already produce an annual review of our 2010 drugs strategy. The most recent annual review was published in February and highlighted the progress made across the three strands of the strategy—namely, reducing demand, restricting supply and building recovery. The report also set out our future commitments, including new initiatives and actions to respond to emerging evidence and the changing nature of the drugs market.
I recognise that substance misuse is not an issue that government can tackle alone. We value contributions made by our key partners to support the delivery of the 2010 strategy, including: our independent experts, the Advisory Council on the Misuse of Drugs; law enforcement agencies, including the National Crime Agency; international partners; and those working within the prevention, treatment and recovery sector. We are also committed to ensuring that, where possible, we assess the effectiveness and value for money of the 2010 strategy. Furthermore, our action to restrict the supply of illicit drugs is complemented by activity through the serious and organised crime strategy, which was launched in 2013 and which has been the subject of its own annual report. Together, the strategies are making significant steps forward in tackling the supply of drugs by organised criminals in the UK and overseas.
We recognise that drugs are a complex and evolving issue, so we will continue to develop the strategy and consider other approaches to help us respond to emerging threats and challenges. We will also continue to report in a proportionate way on progress in tackling these threats and meeting these challenges. I hope that noble Lords will agree that on reflection the approach taken in Amendment 55, coupled with the existing reporting on the 2010 drugs strategy, is the right way forward and, on that basis, that the noble Lord, Lord Rosser, will be prepared to withdraw his amendment.
Lord Rosser
I thank noble Lords who have spoken in the debate and the Minister for her response and for addressing government Amendment 55. I am obviously a little disappointed that there is apparently to be a one-off review, with no further review, although I note the observation made by the noble Lord, Lord Norton of Louth. It rather begs the question: if the Government are determined that it will be a one-off review and no more, what happens if the report that comes out is rather negative in respect of the operation of the Act? Surely if that were so, there would be a strong case for a further review within a fairly short time to see whether the situation had improved, and perhaps to set out what had happened in relation to any recommendations there might be in the review of the operation of the Act. There is presumably not much point in having such a review if problems are found and no recommendations are made as to how they might be addressed.
That issue will probably have to be left for another day, but I am not sure that it is necessarily wise for the Government to shut the door on any further review of the operation of the Act when that very review might make a case for one within a short time, particularly if it finds that the situation is not as satisfactory as one might have hoped. However, I appreciate that the Government have made some movement with their Amendment 55. I also note the noble Baroness’s comments that much of the information set out in our Amendment 52 is likely to be covered in the review of the operation of the Act under government Amendment 55. In the light of that, I beg leave to withdraw my amendment.
Psychoactive Substances Bill [HL]
Baroness Chisholm of Owlpen Excerpts(9 years, 6 months ago)
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Lord Tunnicliffe (Lab)
My Lords, I am sorry that the Chamber is not fuller to witness this unique moment when I agree with my noble friend Lord Howarth of Newport. I am not sure that it will happen again: it has certainly not happened before. We all take the view that well-informed education is key to drugs policy and to addressing these very difficult issues. The spirit of Amendment 54 seems quite interesting. We are very interested in how the Minister responds to it. It would be very bad if, by accident, we inhibited thoughtful education on this issue.
I cannot go all the way on Amendment 53. Certainly, I can see why we would like to make a crime of assisting. Encouraging, once again, gets into worrying territory. I will listen to the Government’s response with great care.
Baroness Chisholm of Owlpen (Con)
My Lords, I think we all agree that the key element of this Bill is the provision of civil sanctions. These are important because they offer an alternative, flexible mechanism to tackle the trade in new psychoactive substances. The amendments in this group relate to the list of prohibited activities in Clause 11. These activities essentially cover the offences in Clauses 4, 5 and 8— namely, the production, supply, importation and exportation of a psychoactive substance—along with the secondary offences of assisting and encouraging those offences.
Amendment 53 seeks to remove paragraph (f) from Clause 11(1) and so remove from the list of “prohibited activity” activities which assist or encourage the production, supply, offering to supply, importation or exportation of a psychoactive substance. In the normal way, the secondary offences of assisting or encouraging a crime apply to each of the main offences in the Bill, which is why the Government have specifically included such conduct in the list of prohibited activity.
If this amendment were to be made it would not, for example, be possible to serve a prohibition notice on someone providing precursor chemicals to another person knowing that the other person intended to use them to produce psychoactive substances. Were that the case, the relevant law enforcement agency might then have no option but to charge that person with the criminal offence of assisting the commission of an offence under Clause 4. Amendment 53 could therefore have the opposite effect to the outcome that the noble Lord is seeking to achieve, as it would force law enforcement agencies down the prosecution route rather than deploying a civil sanction.
The noble Baroness has asked how assisting or encouraging a crime differs from aiding or abetting a crime. This is a complex subject, which has excited much debate within the legal community ever since the Serious Crime Act 2007 created the offence of encouraging or assisting. Perhaps it is simplest to acknowledge that there is potential crossover between the two concepts—on occasion it will be possible both to aid and abet, and encourage or assist—but there will also be offences where, because of the circumstances, it will be possible to encourage or assist, even though there is no aiding or abetting.
Amendment 54 seeks to make clear in the Bill that the provision of harm reduction advice or information does not constitute a prohibited activity. Let me assure noble Lords that giving such harm reduction advice will not be a criminal offence under the Bill. The Government have no desire to hinder the giving of such advice—the opposite is in fact true—but if someone were to publish a manual on the production of psychoactive substances, we would wish to see that activity prohibited. The Bill allows for this. For instance, guidance published by a charity which identifies and highlights the dangers of these substances will be seeking to reduce the harms of these substances and will not fall foul of the Bill. I hope that having that assurance on the record will allay any concerns that the noble Lords and the noble Baroness may have in this regard.
The Government recognise that this legislation is not the silver bullet to tackle psychoactive substance misuse. The Bill must be seen in the context of our wider strategy to tackle the harms they cause. We are also driving forward another key recommendation of the expert panel, that of enhancing our efforts to reduce demand, including through effective prevention programmes and by providing the right health-related services to support individuals recovering from substance misuse. This is, of course incredibly important. On the basis of that explanation and the assurance that I have given on Amendment 54, I hope that the noble Baroness will be content to withdraw her amendment.
Baroness Hamwee
My Lords, I certainly will. I am grateful for that explanation. I can understand the structure of the clause and its thrust rather better than I did, which was pretty stupid of me. When I looked up “aid and abet” on the internet to see what that told me, I was pointed straight to the CPS guidance, which seemed to deal with pretty much everything other than aiding and abetting. It starts with “assisting and encouraging”, so it is hardly surprising that some of us are confused. I did not know that there was such a major debate going on in the legal community; they must speak of little else. I am grateful for the clear explanation; I beg leave to withdraw the amendment.
Lord Tunnicliffe
My Lords, I have some limited sympathy with these amendments. Any notice that has indefinite extent, which seems to be where the Bill is, has a certain discomfort about it. Clearly the Government share this discomfort because they are limiting the period of extent to three years for under 18 year-olds. I cannot see, having accepted that indefinite extent is inappropriate for under 18 year-olds, why it should not be inappropriate for those over 18. “Proportionate” is a word we all like to move around in legislation. I found that the Government have used it quite freely throughout the document. I will be interested in their response to Amendment 71A as well.
Baroness Chisholm of Owlpen
My Lords, I thank the noble Baroness for these amendments and the noble Lord, Lord Tunnicliffe, for his views. We see the civil sanctions as a useful tool to take proportionate action against offenders. The Bill contains two levels of sanctions: prohibition and premises notices, and prohibition and premises orders. Orders are the most severe, being imposed by a court and attracting a criminal offence for non-compliance.
Amendments 55A and 60A relate to prohibition notices as provided for in Clause 12 and premises notices in Clause 13. The Government have deliberately created the notice regime to be light touch, allowing a senior police officer or local authority officer to impose such a notice where they reasonably believe that a person is carrying on, or is likely to carry on, a prohibited activity as defined by Clause 11. In the case of a premises notice, the test is that there is reasonable belief that prohibited activity is being, or is likely to be, carried on at particular premises. There is no criminal sanction. The purpose of these notices is to try to stop further criminal behaviour occurring in the first instance. They are a form of final warning.
Amendment 55A seeks to remove the differentiation, so that the time limit will apply to all notices. Our starting point in relation to adults is that, as the primary aim of a prohibition notice is to stop an individual engaging in criminal conduct—something they should not be doing in any event—there was no need to impose a time limit. I remind the noble Baroness, Lady Hamwee, that other civil orders of this kind made against an adult—for example, anti-social behaviour injunctions—may also have an indefinite duration. I recognise that there are particular sensitivities about imposing civil sanctions on young people. For these reasons, we have restricted the duration of a notice issued to a person under 18 to a maximum of three years.
On Amendment 60A, a premises notice cannot be issued to an individual under the age of 18. Similar considerations apply here to those in Clause 12, so we feel that there is no need to put a time limit on premises notices.
Turning to Amendment 71A, we entirely agree that any prohibitions, restrictions or requirements contained in a prohibition order or premises order must be appropriate and proportionate. Proportionality will routinely be considered by a court as part of this decision. It is also important to remember that the court is bound by Section 6 of the Human Rights Act 1968 to act in accordance with the convention rights. Arguably, for the reasons I have given, it was not strictly necessary to include a proportionality test in Clauses 17 to 19 but we included it so that there was symmetry with the test applied by a senior officer or a local authority for the issuing of a prohibition notice or premises notice. I accept the spirit in which the amendment is intended but it is simply not necessary to amend Clause 21 to achieve this end. On the basis of this explanation, I hope the noble Baroness will be content to withdraw her amendment.
Lord Howarth of Newport
Did the Minister mean the Human Rights Act 1968 or that of 1998?
Baroness Hamwee
My Lords, I cannot say that I am comfortable about notices applying for an indefinite or unlimited period. There may be concerns about the detail of the notice. I obviously need to read the noble Baroness’s explanation. I should also wait to see what response we get to my later amendment, which is on appeals against notices. These issues all go together, and I would like then to consider where we have got to in the round. I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, the amendments in this group make a number of changes to the provisions in the Bill relating to notices and orders. The most significant amendments—Amendments 75, 76 and 77—insert three new clauses which make further provision in respect of access prohibitions.
Clause 21 enables a prohibition order or premises order to include an access prohibition, barring or restricting access to specified premises. Such a provision would, for example, enable the closure of a head shop selling psychoactive substances, initially for up to three months. This approach is based upon the provisions in the Anti-social Behaviour, Crime and Policing Act 2014 relating to anti-social behaviour closure powers. Although a number of elements of that regime are already in the Bill, the Government feel that a number of additional elements of the 2014 Act should also be replicated.
For the civil sanctions in the Bill to be effective, they must be adhered to. Therefore, sanctions must be included to deter those who would otherwise choose to breach the terms of an access prohibition.
The other amendments are largely of a technical or drafting nature, and I would be happy to provide further details if necessary. I trust noble Lords will agree that these are all sensible refinements to the existing provisions in the Bill and on that basis I beg to move.
Baroness Hamwee
My Lords, I have one or two questions on the amendments in this group. Amendment 75 deals with reimbursement of costs. Would the person being asked to make the payment have the opportunity to make representations with regard to what is being claimed—both about the principle and the amount that has been calculated and ordered?
Amendment 76 inserts a new clause on exemption from liability and refers to,
“an act or omission shown to have been in bad faith”.
I note that that does not extend to negligence. I looked at the Anti-social Behaviour, Crime and Policing Act, and we do not have negligence in there either, but it does not seem to me that not having it in that Act makes this right.
It is not quite a read-across, but Amendment 77 again applies similar provisions to those in the Anti-social Behaviour, Crime and Policing Act. Something struck me about this while reflecting on what happened during the last Government and the focus on the rehabilitation revolution and so on. I thought we were trying to avoid short-term prison sentences, and it felt uncomfortable to be providing for short-term prison sentences when we know that so often what happens is that the offender learns more about how to commit crime than he does about how not to commit crime.
Baroness Chisholm of Owlpen
My Lords, I reassure the noble Baroness that Amendment 75 makes provision to enable the relevant law enforcement agency to apply to the appropriate court for reimbursement of costs incurred in relation to the “clearing, securing or maintaining” of premises.
Amendment 76 makes provision to exempt the relevant law enforcement agency from civil liability for anything done or admitted to be done in the exercise of a power in relation to an access prohibition. The exemption does not apply when the act or omission was committed in bad faith or when the conduct was unlawful by virtue of Section 6(1) of the Human Rights Act 1998, acting incompatibly with the convention rights.
Amendment 77 creates an offence for a person, without reasonable excuse, to remain on or enter premises in contravention of an access prohibition or to obstruct an authorised person exercising powers under Clause 22(1). I understand the noble Baroness’s worries about the maximum penalty in England and Wales of six months’ imprisonment. I might need a little inspiration from my officials on that one, but perhaps we could write to the noble Baroness and make that a bit clearer.
Baroness Hamwee
This is really a broad matter of policy, and I appreciate that the provision on length of sentences replicates part of the Anti-social Behaviour, Crime and Policing Act 2014, although there are also provisions in there for different periods. I should have given the Government an indication of these questions, but I am afraid that I did not think of them until very shortly before we came into the Chamber. This may not be consoling to the noble Baroness, but I was listening in on a rather high-powered legal discussion the other day, where someone referred to what the Minister thought at four in the morning when questioned—
Baroness Chisholm of Owlpen
I am sorry to interrupt the noble Baroness, but I have a bit of clarification about Amendment 77. Six months is the standard maximum in a magistrates’ court.
Baroness Hamwee
I shall not continue with the anecdote, because I was only giving the noble Baroness an opportunity for inspiration to fly to her. I might tell her later.
Baroness Chisholm of Owlpen
My Lords, given the lateness of the hour, I do not propose to speak at length about this group of technical and drafting amendments. My noble friend Lord Bates has provided details of the amendments in two letters to the noble Lord, Lord Rosser, copies of which have been sent to all noble Lords who spoke at Second Reading. Copies of these letters have been placed in the Library. I would be happy to explain particular amendments if any noble Lord would like further details, but for now I beg to move.
Psychoactive Substances Bill [HL]
Baroness Chisholm of Owlpen Excerpts(9 years, 6 months ago)
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Baroness Chisholm of Owlpen (Con)
My Lords, I believe that the noble Baroness, Lady Meacher, and the noble Lords, Lord Paddick and Lord Rosser, have the same ambition as the Government—to ensure that lawful medical practice and patient care, as well as bona fide research, are untouched by the provisions of this Bill.
The purpose of Schedule 1 is to list psychoactive substances exempted from the scope of the Bill. It excludes certain substances which are not the target of this legislation, and are mostly already subject to regulatory controls. Importantly, under paragraph 2, it exempts medicinal products; this is the subject of Amendment 25, as proposed by the noble Baroness, Lady Meacher. This covers those products that have marketing authorisations issued in the UK, in the EU, or such authorisation issued by the licensing authority. The current definition for medicinal products was a starting point for the Bill’s introduction and is being reviewed again by the Medicines and Healthcare Products Regulatory Agency.
We continue to test whether our objective is achieved by the schedule as currently drafted. For example, we recognise that unlicensed medicines for human use need to be taken out of scope. These are lawfully manufactured, imported, distributed or supplied for the treatment of individual patients after being ordered by a range of healthcare professionals, not just doctors. It was always our intention to remove these medicines and this activity from the scope of the Bill. In this case, we see the advantages of making provision on the face of the Bill—in Schedule 1 to the Bill—rather than in regulations made by virtue of the power in Clause 10. I confirm to the noble Baroness, Lady Meacher, that our intention is to bring forward appropriate amendments—if possible in time for Report—to ensure that the exemption for such products is properly aligned with existing medicines legislation.
Amendments 26, 28 and 49 all relate to safeguarding research into the medicinal and other legitimate uses of psychoactive substances. As I said, the Government attach a high priority to bona fide scientific research and to not putting in place unnecessary regulatory barriers that in any way impede research in the UK. We are actively ensuring, in accordance with our original intention, that any interaction between the provisions of the Bill and those conducting or supporting bona fide research into psychoactive substances is removed.
Along with the Department of Health, we are testing the need for greater latitude, over and above this exemption. As a priority, we are establishing how we best achieve this, perhaps through the drafting of further exemptions in the Bill. There could also be a case for making exceptions through regulations under Clause 10. We may well, therefore, bring forward government amendments on this issue on Report. I have listened to the concerns that have been expressed and all our further considerations will take account of the text and intent of noble Lords’ respective amendments.
Finally, the noble Baroness, Lady Meacher, has also tabled Amendment 27 in this group, which would exempt low non-psychoactive doses of psychoactive substances. My understanding is that such materials are used by forensic and other laboratories, which hold these chemical reference samples for investigative procedures. I can assure the noble Baroness that, as these substances are not supplied for human consumption, they are already outside the scope of the Bill.
I hope I have demonstrated that I have sympathy for the intention behind Amendments 25, 26, 28 and 49. We are actively looking at whether the definition of medicinal products needs to be strengthened and whether further precision is needed to safeguard legitimate research. We will also make every effort to get together with the experts; that is an excellent idea. On the understanding that we will return to these issues on Report, I trust that the noble Baroness will be content to withdraw her amendment.
Baroness Hamwee
My Lords, is there an issue around veterinary medicine as well as human medicine? I do not know the answer to that; it is a straight question. Is it something that needs to be looked at? The Minister is shaking her head, which suggests that one could go on producing veterinary medicines without offending under the Bill, which raises all sorts of other issues.
Baroness Chisholm of Owlpen
Veterinary medicines are not for human consumption, so they do not fall within the scope of the Bill.
Baroness Hamwee
My concern is that research in that area should not be impeded.
Baroness Chisholm of Owlpen
My Lords, I understand that these are probing amendments which seek an explanation of some of the drafting in Schedule 1. Amendments 30 to 33 broadly deal with the same point, although Amendment 33 is in different terms to the others.
I am hesitant to say this following that which we have just heard but, taking alcohol as an example, Schedule 1 defines an alcoholic product as,
“any product which … contains alcohol, and … does not contain any psychoactive substance”.
The question is why the second limb of this definition does not refer to “any other psychoactive substance”. The answer is logical but, needless to say, not entirely straightforward. It hinges on the distinction between the natural meaning of the term “psychoactive substance” and the meaning given to that term by the Bill.
Under Clause 2, as we now all know, a psychoactive substance is a substance which,
“is capable of producing a psychoactive effect in a person who consumes it, and”—
importantly—
“is not an exempted substance”.
Alcohol is an exempted substance and so is not a psychoactive substance for the purposes of the Bill. It is therefore not necessary to refer in the definition of alcoholic product to “any other psychoactive substance” because we have already excluded alcohol from the definition of a psychoactive substance. I hope that makes sense.
Amendment 34 touches on a different issue—food additives and flavourings. These are already authorised under the EU legislation so the reference in paragraph 10 of Schedule 1 to an EU instrument—ugly though that may sound—is all that is required. My understanding is that this amendment would expand the paragraph referred to to read “an EU or other applicable instrument”. However, only EU instruments are relevant here and so the additional words are not required. I should perhaps add that we have discussed and agreed with the Food Standards Agency the approach taken in paragraph 10 in Schedule 1.
The noble Baroness suggested that the additional words might provide future-proofing. However, I remind her that there is a regulation-making power in Clause 3 designed with that in mind. In the light of this rather complicated explanation, I hope the noble Baroness will be content to withdraw her amendment.
Baroness Hamwee
My Lords, the Official Report will not record the facial expressions around the Chamber in response to the Minister. I think I follow what has been said, but whether it is a sensible way of writing legislation I rather doubt. Legislation should say what it really means and not leave us struggling to justify such really quite difficult wording. I am tempted to press this to a Division, but we have a lot to get through today so I will not take the time now, but who knows? I beg leave to withdraw the amendment.
Psychoactive Substances Bill [HL]
Baroness Chisholm of Owlpen Excerpts(9 years, 6 months ago)
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Lord Tunnicliffe (Lab)
My Lords, there are effectively three amendments here. One is Amendment 11, whose essence is guidance. All three may have some merit and we would be very interested in the Minister’s reply. The first one on guidance would seem to be very important for potential users. Also, of course, it would meet a concern which we were lobbied about regarding the retail sector, which clearly is going to have problems given this Bill. It is going to need some guidance and it may have to try and generate its own if the Government do not help. I would be very interested about what the Government have to say on that.
Proposed new paragraph (a) in Amendment 12 and the availability of information on the internet also seems sensible to me. It does not mean we are softening our general position on the Bill. Good information provided by government has to be a good thing. I would be very interested in the Government’s response to the proposal relating to testing centres. At first sight, it looks rather over the top, but on the other hand the Government are committed I believe—and it is very important how carefully this response comes across—to a much more comprehensive approach to testing, to support the Bill. That will give us some tangible evidence that the Bill will work. I hope the Government will take these three areas seriously and, depending on their response, we may take this further with the noble Lord, Lord Howarth, on Report.
Baroness Chisholm of Owlpen (Con)
I am grateful to the noble Lord, Lord Howarth, for his explanation on these amendments. Before I start, I was very rude earlier when I did not thank him for the kind words he said at the beginning of this debate and I feel very honoured to be taking part. I agree that a joined-up approach in departments is a very useful point. Also, I feel extremely privileged to be able to learn from my noble friend Lord Bates about how these things are conducted. The noble Lord has asked that, before this Act comes into force, the Home Secretary must issue guidance on how users, enforcement authorities and others can identify individual psychoactive substances, the degree of the psychoactivity, their safe uses and their relative harms.
I can certainly understand the sentiment underpinning at least part of Amendment 11. I acknowledge the importance of the effective implementation of the provisions in the Bill by enforcement agencies and the crucial role played by the Home Secretary in ensuring that this takes place.
I emphasise that we are working closely with enforcement agencies—the police, the Border Force, the National Crime Agency and the Local Government Association—to ensure the successful implementation of the Bill. All the agencies, supported by the Home Office, will produce guidance for their own officers that will address issues such as those raised by the noble Lord. For example, it seems sensible that the College of Policing, with the national policing lead on drugs policy, is best placed to produce the guidance for police officers, along with our input, as I have said. Similarly, the Local Government Association is well placed to produce tailored guidance for local authorities.
We are also working with other bodies, including the British Retail Consortium and the Association of Convenience Stores, to produce targeted guidance for their members. It is also important to discuss with the Welsh and Scottish Governments and with Northern Ireland’s Department of Justice what guidance is needed to address their national needs. Any guidance for prosecutors in England and Wales is a matter for the Director of Public Prosecutions.
However, I have grave concerns about issuing guidance to users of psychoactive substances on how they might identify such substances, along with their degree of psychoactivity, their safe uses and their relative harms. I have the same concerns about Amendment 12, which states that the Government must establish a network of centres where drug users can get their illegal drugs tested. Although this is doubtless well intentioned, I fear that such approaches could have the opposite effect to that intended. Such initiatives could actually serve to promote the availability of psychoactive substances and encourage their use, which is clearly contrary to the purpose of the Bill. A better approach is to highlight the harms of such substances, alongside wider efforts at prevention.
Baroness Meacher
The Minister referred to testing centres possibly having the opposite effect to that intended. In the Netherlands, where such centres have been in operation for some time, they are actually rather successful. For example, there have been, I believe, no deaths resulting from psychoactive substances. Rather than worry about whether they might have the opposite effect to that intended, I suggest that the Government check with the Netherlands how those centres are working, because they would find that they were working well.
Baroness Chisholm of Owlpen
I will certainly take that forward. However, with regard to testing centres, the Dutch model sits within a more tolerant drugs policy that the Netherlands has. Our key message is that there is no safe dose of these drugs, and they should not be taken. Any move towards such a scheme would undermine that message and could encourage drug use, contrary to government policy. This proposal would also cover drugs controlled under the Misuse of Drugs Act, not just those covered by this Bill. That would undermine our intentional obligations as a signatory to the UN conventions, and no clear public protection case has yet emerged for such a testing centre.
There is a well-established system for issuing a national alert. Any intelligence that Public Health England receives alerting it to identifiable problems, such as a batch of drugs likely to cause significant risk in England, is acted on.
Lord Tunnicliffe
There is more common ground than the Minister allows. I can see her aversion to saying that there are safe levels and safe doses, and I am quite sympathetic to this. But there can always be the inverse—there can be “dangerous”, “very dangerous” and “fatal”, which is the reciprocal way of putting it. I ask the Government to look into whether there is some common ground in this area because the provision of information and alerting people to the dangers of these substances—we share the Government’s enthusiasm for banning them—by these various amendments must have a generally benign effect.
Baroness Chisholm of Owlpen
I thank the noble Lord for that, but there is a well-established system for issuing a national alert. Any intelligence that Public Health England receives alerting it to the identifiable problem of a batch of drugs likely to cause a significant risk in England is acted on. There was an example earlier this year. There was a warning from Madrid that Superman pills sold as ecstasy containing PMMA were found in Spain. This followed the tragic deaths in England over the Christmas period caused by similar Superman pills. PHE took immediate action and issued a warning that these highly dangerous drugs may still be in circulation. Public Health England is working with partners to accelerate the review already under way on how drug alert systems in the UK can be improved, including how they join up with intelligence from Europe.
Lord Norton of Louth
I agree with what was said by the noble Lord, Lord Tunnicliffe—you start from the basis that it is harmful and ascend in order of degree of harm. I take what my noble friend said about there being a mechanism for identifying them already and for disseminating that, but could she say a little more about the dissemination? How far does it go? The concern is whether it actually reaches the users or stops at an earlier point in trying to prevent the dissemination of the drugs. How much is there a greater awareness of and sensitivity to those who are in danger of consuming these substances?
Baroness Chisholm of Owlpen
I thank my noble friend Lord Norton for that. That is probably covered by FRANK, which is an element of our broad approach to prevention. We are investing in a range of programmes that have a positive impact on young people and adults, giving them the confidence, resilience and risk-management skills to resist drug use. It has been a valuable resource for young people, parents and teachers, especially when used for wider resilience-building and behaviour change. It continues to be updated to reflect new and emerging patterns of drug use and to evolve to remain in line with young people’s media habits and to strengthen advice and support. Since its launch it has been visited by more than 35 million people, and millions have called the helpline to speak to specially trained advisers.
I hope that explanation has gone at least some way to satisfying the noble Lord, Lord Howarth, and that on that basis he will be content to withdraw his amendment.
Lord Howarth of Newport
My Lords, I am grateful to the noble Baroness, Lady Meacher, the noble Lords, Lord Paddick and Lord Norton, and particularly my noble friend Lord Tunnicliffe on the Front Bench. He saw some merit in what I said. This illustrates the virtue of the Committee process. The dialectic helps us all to learn. My noble friend Lady Meacher was right to say that information is at the very least as important as legislation, because we have all this evidence that prohibition has not worked. In that case, it is much better that people should be helped to understand what they do.
The noble Lord, Lord Paddick, was concerned that my recommendation of a network of testing centres would lay impossible demands on the existing resources of laboratories and forensic facilities. Of course, he is right: with our existing resources we could not possibly construct such a network that would be accessible in all regions of the country. My proposition is that we should aim to achieve that. We know that this legislation will in any case require an expansion of forensic facilities. It seems to me that you can achieve both purposes simultaneously: to enable those whose responsibility it is to enforce the law to have speedy access to the information they need, but to also assist vulnerable consumers. I am grateful to the noble Lord, Lord Norton, for his endorsement of the value and importance of providing reliable, trustworthy and up-to-date information to all concerned.
Psychoactive Substances Bill [HL]
Baroness Chisholm of Owlpen Excerpts(9 years, 6 months ago)
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Lord Paddick
My Lords, I waited until this moment to speak because it seemed unfair to comment on the amendment in the name of the noble Lord, Lord Rosser, without his having spoken to it first. I have some sympathy with what the Labour Party is proposing, but I prefer Amendments 4 and 6 proposed by the noble Baroness, Lady Meacher, for the very reason that she articulated. The market for new psychoactive substances and that for other substances covered by the Misuse of Drugs Act cannot be treated as separate. The whole reason for the existence of new psychoactive substances is the controlling of other drugs. There would be no need for people to develop so-called legal highs if they could get the high legally from controlled drugs. It is essential that the annual report includes exactly what the noble Baroness proposes: an assessment of the impact on health and the social harms brought about by the Misuse of Drugs Act and this Bill.
The noble Lord, Lord Howarth of Newport, gave a long list of things that could be included in the report. If everything he suggested was included, it might not only put the Government off producing the report but put me off reading it or trying to wade through it. I agree with the noble and learned Lord, Lord Mackay of Clashfern, that post-legislative scrutiny of a Bill such as this by a Joint Committee of both Houses would be appropriate, but it should not mean that there should not also be an annual report, because things are changing so quickly. We have heard from other noble Lords about how different drugs come into mode and out again. We therefore need an annual assessment of whether the legislation is still fit for purpose.
Baroness Chisholm of Owlpen (Con)
I am grateful to the noble Baroness, Lady Meacher, and the noble Lords, Lord Rosser and Lord Howarth, for setting out the case for their respective new clauses. In one way or another, these all require an annual report on the impact of the Bill, and we have covered a huge amount of ground. Let me say at the outset that good lawmaking absolutely dictates that all new legislation should be reviewed post implementation to consider its effectiveness, and this is no exception. We are committed to post-legislative review of all new primary legislation. I can therefore assure the noble Lords and the noble Baroness that the Government fully intend to carry out a review or reviews of this legislation, once implemented.
Of course, data are hugely important, and it is important that we take in all aspects of the Act. It is right that the evidence required to produce an adequate review of the Act is fully and carefully considered. However, it is really important to remember that, given the time lag of some of the key data sources, it is unlikely that any useful data will be available within the first year of the implementation of the Act. Such a review normally takes place three to five years after Royal Assent to allow for a rich source of data to be collected, particularly if we are going to collect the amount of data that I feel is important, as the noble Lord, Lord Howarth, suggested. Indeed, as my noble friend Lord Blencathra said, it takes time to collect the data. It is important for the departments to conduct a particular review to make sure that they have everything in place. Certainly, in this case, we would not want to wait three years to review this legislation.
Understanding the evidence for and against the different legislative options to tackle the growth of psychoactive substances was central to the terms of reference of the Home Office’s New Psychoactive Substances Review Expert Panel, set up by the Liberal Democrat Minister Norman Baker. Alongside the expert panel’s report, the Home Office also published an evidence review last autumn. This set out the available evidence at the time on psychoactive substances. The review examined the identification of new psychoactive substances, along with the characteristics of users and their motivations for using these substances. It also examined the market and the evidence of harms. The evidence review provides us with a good basis for understanding the extent of the market, the uses and the problems associated with new psychoactive substances, and for measuring any changes over time.
The noble Lord, Lord Howarth, also mentioned that it was necessary for a wide range of data to be collected on the prevalence of traditional illicit drug use and its related harms. While the evidence on psychoactive substances is less established, there are data on a number of previously unseen substances identified in the UK, as well as on the prevalence of the use of some types of psychoactive substances, related deaths and treatment demand. Of course, the monitoring of data, along with the way they are collected so that they can be strengthened to provide a more complete picture of the use and harms of psychoactive substances, will continue over the period until a full review is done.
Lord Rosser
Before the noble Baroness tells us what she wishes to do with her amendment, I want to say that I do not think that the issues raised in Amendment 105 will need three years. They are about the collection of basic data, where we appear to have a distinct weakness, which was identified by the expert panel and was the subject of recommendations by that panel. Why do we need to wait so long to address an issue of concern to the expert panel; that is, the lack of data?
Baroness Chisholm of Owlpen
The noble Lord is right: I was rather remiss in not saying that I was sympathetic to his views on this issue, and I apologise. We will certainly consider it between now and Report.
Baroness Meacher
I just want to explore the point in Amendments 4 and 6 that, because there is only a single market that incorporates all the controlled drugs under the 1971 Act and psychoactive substances, post-legislative scrutiny will not make any sense unless it looks at the overall impact of this Bill. For example, what we can expect to happen is that if you ban synthetic cannabis, people will move straight over to the cannabis controlled under the Misuse of Drugs Act. If you ban a substitute for cocaine, people will move straight back to the natural cocaine, if you like, that is controlled under the Misuse of Drugs Act. In order to assess the impact of the Bill, it will be essential to look at the overall consumption of illegal, banned drugs and the deaths from those drugs. The deaths may move across from one type of drug to another, as would the harms and so forth. It is essential that the Government begin to look at this as a single, illicit market for banned substances. Does the noble Baroness agree that, therefore, post-legislative scrutiny has to look right across the piece?
Baroness Chisholm of Owlpen
I thank the noble Baroness for her points, and I agree with her. However, it is important that we do not tie the hands of the committee. It is up to it to review, going forward, and we have to let it decide what it feels is right.
Lord Howarth of Newport
I am not sure whether it is fair to ask the Minister this, but perhaps her noble friend sitting beside her will find an opportunity to comment. While I readily accept that it is unrealistic to expect the Home Office within 12 months to produce a report remotely of the range that I suggested, none the less over time the compass of the report should grow so that it does address itself on behalf of the Government as a whole to that range of issues and concerns.
I wonder whether some of the difficulty that the Government may find in producing an annual report on their policies in relation to drugs and how they are proceeding may be because there have been such extensive reductions in staffing in Whitehall that it is very difficult for departments to get this work done. It would be helpful to have some comment on that and on the structure within government whereby the Home Office works in co-ordination with other government departments in the broader strategy to deal with the problem of drugs, to which I understand that Government are committed.
Baroness Chisholm of Owlpen
I thank the noble Lord. I have a lot of sympathy for what he said, and I think that it is right for us to go away and reflect on this and come back at Report. Of course, the Home Office has every intention of reviewing the Bill once it is implemented. We just do not feel we should put such a commitment in primary legislation. It is in our interests to consider the impact of this Bill and how the psychoactive substance market is changing to ensure that both our legislative and non-legislative responses are as effective as possible. Having said that, of course we will go away and think further on this.
Baroness Meacher
My Lords, I thank noble Lords who contributed to this debate, particularly the noble and learned Lord, Lord Mackay of Clashfern, for his helpful proposal that there should be post-legislative scrutiny by a Joint Committee. I hope that that can come about. I agree with the noble Lord, Lord Howarth, that that sort of scrutiny does not detract from the need for the Government’s post-legislative scrutiny, so I think that we are all going in roughly the same direction.
I was very pleased with the noble Baroness’s response about the recognition of the single market for these illegal drugs, because it would be an enormous step forward if we stop seeing these things as separate and start examining what is going on across the piece. That has all been extremely helpful. The timeframe is an issue: three to five years seems an awfully long time particularly as some of us do not really expect this legislation to work, especially bearing in mind the Irish experience. It is a great pity—Ireland is now four years on and still wondering what to do.
Given all of that, this is Committee and we have had a useful debate on this issue. I look forward to meeting Ministers between now and Report. On that basis, I am more than happy to withdraw the amendment.