Psychoactive Substances Bill [HL]

Baroness Hamwee Excerpts

Tuesday 26th January 2016 Lords Chamber

[Lord Rosser (Lab)]

My Lords, as the Minister has said, this group of amendments indicates that the Government have accepted the view of this House, as expressed through the carrying of an amendment on Report, that when sentencing an offender for the offence of supplying or offering to supply a psychoactive substance, it should be regarded as a statutory aggravating factor if that offence took place on prison premises. The only change the Government have made is to replace the reference in the Lords amendment to “prison premises” with “custodial institution”, and we welcome the Government’s decision to accept the view of the House on this matter.

However, this group of amendments also provides for a new offence of possession of a psychoactive substance in a custodial institution as opposed to the far more serious issue of supplying such substances, which is now already covered in the Bill. The new offence of possession will cover inmates, visitors and staff in prisons with, I think, the maximum penalty being two years’ imprisonment, an unlimited fine, or both. Thus, the only new power the new offence would give is the ability further to punish inmates and others in a prison for possessing psychoactive substances for their own use, as opposed to supplying them to others. Since those who run our prisons already have powers to discipline and punish inmates for possessing controlled psychoactive substances, I ask the Minister this: where has the late pressure come from to create this new offence, since the Government did not previously think it should be provided for in the Bill? Has the pressure come from those running our prisons, or from the Prisons and Probation Ombudsman or the Chief Inspector of Prisons, who have both certainly expressed concern about the impact of psychoactive substances but neither of whom, as far as I am aware, has called for a new offence of possession? What they have argued is that better and more effective detection mechanisms need to be in place to detect psychoactive substances in our prisons, along with more frequent drug testing.

Is not the reality that, for those who possess psychoactive substances in the confines of our prisons, where the bullying and violence associated with the existence of such substances has already been identified by the Chief Inspector of Prisons, the need is to regard this primarily as a health issue and to focus on education with an appropriate drug education and awareness strategy? What are the Government actually doing to combat possession of new psychoactive substances for personal use through these means, which are surely likely to be more effective, if the resources are provided, than the new offence proposed in this group of amendments? Is that not the support that those who run our prisons really need to address this issue, along with the resources to provide effective detection mechanisms and more regular drug testing? Are not those the resources that this Government have so far been failing to provide, as, in my opinion, the Minister implicitly acknowledged in his opening comments? What is the Government’s estimate of the reduction in the personal use of psychoactive substances in our prisons that will result from the creation of this new offence, and on the basis of what information was that estimate made?

Finally, will this new possession offence in prison for inmates, visitors and staff also apply to poppers? I ask this in view of the support there has been, including from the Commons Home Affairs Committee, for adding poppers to the list of exemptions to the ban on psychoactive substances because of the potential consequences of such a ban in this case. In the light of the decision by the Home Secretary to refer the issue of poppers for further consideration by expert bodies, do we really want to create a new possession offence in respect of a substance which is popular in some sections of the gay community, has been used recreationally in Britain for more than 30 years and has not so far been banned by any Government, given the likelihood that within the next few months a decision could be made as a result of expert consideration that it should continue to not be banned?

Having said that, and having made my points, I want to make it clear that we certainly do not intend to oppose the Commons government amendments creating the new offence of possession, but we want answers to the points that I have raised.

[Baroness Hamwee (LD)]

My Lords, the situation described by the Minister is very serious and seems to lead directly to issues of prison reform—drugs being one of the considerations—but one would want to look at far wider causes than how concerns about prison manifest themselves in this issue. I wondered what ingenuity might be applied to introduce the issue of poppers, since it would be quite difficult to provide an amendment to the government amendments to deal with that, so I congratulate the noble Lord, Lord Rosser, on finding a way to introduce the subject.

We, of course, will not oppose these amendments, but I must say that we will now have possession of a controlled drug being an offence, possession of a new psychoactive substance not being an offence, but possession of a new psychoactive substance in prison being an offence. In our view, that is too muddled but, of course, at earlier stages of this Bill we were calling for a widespread health-based review of all drugs laws, so I am sure that the Minister will not be entirely surprised that I make that comment.

[Lord Ramsbotham (CB)]

My Lords, I warmly endorse all that the noble Lord, Lord Rosser, has said. One aspect of Amendment 9 that the Minister mentioned was that a number of improvements were being made in prisons to the detection of new psychoactive substances. I should like to refer particularly to a very powerful report published last month by the Chief Inspector of Prisons on the use of new psychoactive substances. He said:

“Drug misuse is a serious threat to the security of the prison system, the health of individual prisoners and the safety of prisoners and staff”,

but the new psychoactive substances are an even more serious offence and,

“are now the most serious threat to the safety and security of the prison system”.

Because dealing with the new psychoactive substances—searching for them and so on—was so patchy in the Prison Service, the Chief Inspector of Prisons recommended:

“The Prison Service should improve its response to current levels and types of drug misuse in prisons and ensure that its structures enable it to respond quickly and flexibly to the next trend”.

I will mention the next trend before I conclude. The chief inspector recommended:

“A national committee should be established, chaired by the Prisons Minister, with a membership of relevant operational experts from the public and private prison sectors, health services, law enforcement, substance misuse services and other relevant experts. The committee should be tasked to produce and publish an annual assessment of all aspects of drug use in prisons, based on all the available evidence and intelligence, and produce and keep under review a national prison drugs strategy”.

If that annual report was required, it would, of course, cover the possession mentioned in the amendment that we are discussing, but I am particularly concerned that, in briefing the cross-party group on criminal justice, drugs and alcohol that I chair, the chief inspector mentioned the next trend causing him and his inspectors even more worry, which was the introduction of powdered alcohol. Therefore, we must have a system in place that monitors trends as well as current practices. I ask the Minister: what is happening about the establishment of such a national committee?

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[Baroness Hamwee]

I welcome these amendments very much, particularly the ones relating to research, a concern about which was shared on these Benches. I remember asking about veterinary research, as distinct from research relating to human medicine. There were some raised eyebrows at that point and I had better not pursue it now. But I assume that these provisions will enable research regarding the medicinal use of cannabis, about which we were particularly concerned and on which I moved an amendment. The possible limitation of research was one of the concerns underlying that amendment.

I have a couple of questions for the Minister. I hope I gave him enough notice of them. I am sorry that they came so late by email. Both relate to the definition of,

“a relevant ethics review body”.

The first is on the use of the term “individuals” in paragraph 4(b) of the proposed new schedule. I wondered whether that might suggest—clearly absurdly—that we were looking at research involving separate individuals rather than cohorts of people. When I looked at the Human Medicines Regulations, I realised that the term “human beings” was used and that seemed a rather more appropriate term, less likely to be interpreted in a different way.

My second concern is with regard to charities. We very much want to see wide research so we welcome this approach. I recognise that the regulation of charities has been the subject of some concern and some change recently, but we may not be altogether rid of—how can I put it?—dodgy charities. Is there any sort of loophole here that would enable a dodgy charity to have an ethics committee—it would probably be rather a dodgy ethics committee but, nevertheless, it would be one—that would allow less than appropriate research?

[Lord Hayward (Con)]

I would like to pursue the matter raised by the noble Lord, Lord Rosser, as well as touch on a broader aspect of the legislation. I am in the slightly odd position of having arrived in this place after the original debates in Committee, and I would like to make two points.

First, there is something I do not really understand—and I say this having been chief executive of the British Beer & Pub Association. Pubs were created in 1751. This legislation is all or nothing. There is no allowance for things that might be sold in either a licensed premises or a regulated premises. There are many things in British life that are sold under such circumstances and I do not understand why we have to have an all-or-nothing approach to these substances. I understand the nature of the legislation but there are chemical circumstances under which people could define things and regulate them. If we have been doing something for 260 years, I think the Home Office might catch up. It is probably not its finest hour in terms of legislative process.

To follow up the question asked by the noble Lord, Lord Rosser, since the Government say—this is a change of position, although it was not a specific government amendment—that they will look at something, they could do one of two things. They could either adjust the timetable for the whole legislation and defer it slightly or rush through a consideration of something that is likely to be driven underground in the mean time. The noble Lord, Lord Rosser, asked whether we are going to ban and then unban. What advice will be given to the police in the mean time? Are they to disregard the sale of illegal products or are they just not to prosecute? It really does not make sense. I suggest that we either adopt a position of regulating products or defer the introduction of this legislation.

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[Lord Bates]

In a sense, my argument is about what alternative we have to this. The moment for putting something through now, in primary legislation, has passed. We have to allow this to take its course. Our concession was to say that we would undertake a review in consultation with the Department of Health and the Medicines and Healthcare Products Regulatory Agency. Following the enactment of the Bill, and before the Summer Recess, we will consider whether there is evidence to support these claims. There is a question mark there and we believe that that research and consultation need to happen before we take any further action at this stage.

I see that the cavalry has arrived; I am, as ever, grateful my noble friend Lady Chisholm. To add to the list of exemptions requires the Home Secretary only to make regulations subject to affirmative procedure. To remove from the original list of exemptions would require further primary legislation. I think I have already said this, so I rest my case at that point and beg to move Amendments 2 to 4 in my name.

[Baroness Hamwee]

My Lords, the point is well made and this is an almost insoluble dilemma. I entirely see the Government’s concern to have the overall legislation in place quickly. However, first, can the Minister give the House any news as to when this may come into effect? Secondly, with regard to the particular situation which has been described, this is by no means a solution, but has the Minister been advised as to the likely view of the judiciary—if that is not an improper question for a Minister to answer—in a situation where, by the time a charge comes to be heard by a court, an exemption has been made through regulations?