Anti-social Behaviour, Crime and Policing Bill

Lord Howarth of Newport Excerpts

Wednesday 4th December 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I well understand the concern expressed by the noble Lord, Lord Rosser. For instance, I recognise what I can think of only as collusion between sellers and buyers of substances labelled bath salts, plant food, and so on. The noble Baroness says that this is her only qualification—come on, it is some qualification. We are very lucky to have her explain her point so clearly and, to my mind, so persuasively. As she says, trading standards authorities are as concerned as everybody else and struggling to find a way to deal with this. Has the noble Lord had comments on the proposal from the Trading Standards Institute?

Like the noble Baroness, the points that occurred to me, which I will not repeat but simply support, are: is this risk-based, is it evidence-based, will it bring the law into disrepute, does it recognise the psychology of the consumer? Chemists in China will stay ahead of the game and will use the internet. Of course we have to be smart, but we have to be smart differently, not try to beat them in the way that they are working.

[Lord Howarth of Newport (Lab)]

My Lords, the problems of new psychoactive substances are real and perilous. My noble friend Lord Rosser mentioned the number of recorded deaths. It is simple for an organic chemist to synthesise a new psychoactive substance to mimic the effect of a substance that has been banned. We understand that, across Europe, about 250 new psychoactive substances have been introduced in recent years. The Angelus Foundation, which originally proposed the new clause, has counted at least 250 head shops offering to provide such substances on the shopping streets of this country. There are other outlets, as has been mentioned, all of which succeed at the moment in evading existing regulation.

It follows that the buyers of those substances have no information about the composition, toxicity or purity of what they are buying. It is not only from the head shops that those substances can be obtained. Increasingly, they are being bought over the internet. Social networking spreads the news of the arrival of a new substance, and it is not at all uncommon for party invitations, distributed through social networking, to contain links to the suppliers of such substances.

The situation is very dangerous. The substances are cheap to produce and pretty cheap to buy. Sadly, young people are willing to take extraordinary risks with their own health and safety. A survey by Mixmag of club drug users found that no fewer than 25% of respondents said that they were willing to purchase and consume any white powder, unidentified.

The Angelus Foundation is right to have highlighted this issue and to have dedicated itself to improving the education available to people about new psychoactive substances. I pay tribute to Maryon Stewart, who created the Angelus Foundation following the tragic death of her daughter, who had consumed a new psychoactive substance. Maryon Stewart was impressive when she gave evidence to the inquiry which the noble Baroness, Lady Meacher, chaired on this issue.

However, with genuine great respect for the Angelus Foundation, and of course for my noble friends Lady Smith and Lord Rosser, I believe that this proposed new clause is not the right way to approach the problem. Attacking head shops in the way that it envisages might indeed succeed in driving them out of business, but my worry is that it would drive the people who are purchasing these substances into the arms of nastier criminals—into the danger and squalor of engaging with gang-related street dealers in car parks and alleyways. If they are not already using the internet, and I suspect that most of them will be, it will of course drive them into its seductions and dangers, perhaps particularly those of the dark web. The European Monitoring Centre for Drugs and Drug Addiction reported in its 2013 annual statement that it has identified 693 different internet outlets offering new psychoactive substances for sales. Actually, what I think will happen is that the internet will drive the head shops out of business, just as it has driven record shops and book shops out of business. This is not a measure that would enable us to police the net.

The Angelus Foundation has been candid that its purpose in proposing this new clause is to ban the sale of new psychoactive substances but all the evidence from 50 years of prohibition is that banning substances does not stop trafficking in drugs or people using drugs. In fact, it drives innovation; as one avenue is closed, another is opened. Prohibition has been an engine of crime. It has been counterproductive and has produced appalling consequences.

There are also civil liberties implications in this proposed new clause. Since an earlier version was debated in another place, it has been revised to require a lower standard of proof. The proposition is now that if a court is satisfied merely on the balance of probabilities, and not beyond reasonable doubt, it may make an order against a head shop listing products which appear to trading standards officers to be psychoactive and synthetic, and to have been bought for the purpose of intoxication. If the proprietor is unable to demonstrate that that is not the case, he will be liable to a prison sentence of six months or a level 5 fine. It is inconceivable that in this country we should legislate to imprison people because it appears to an official of the state that such and such is the case and the accused is unable to disprove the allegation. We have not seen legislation like this since the days of the Warsaw Pact in eastern Europe. It would be wrong for us to lower our standard of justice.

I am also bemused to note that the expectation, according to the Angelus Foundation briefing, is that consultation should follow once the legislation is on the statute book. That would be Alice in Wonderland legislation. I had not hitherto seen my noble friend Lady Smith of Basildon as the Red Queen, or my noble friend Lord Rosser as the Red King.

The Intoxicating Substances (Supply) Act 1985 is, I suggest, a bad model for legislation to deal with the problem that we are addressing. It was designed to ban the sale of glue or lighter fluid for purposes of intoxication, but we know what glue and lighter fluid are. The very difficulty is that we do not know what these new psychoactive substances are, so how would the court establish the balance of probabilities? Would it be on the basis of guesswork or on the say-so of a trading standards officer? Justice, like policy, ought to be based on evidence. One of the great difficulties that we are facing is that the infrastructure for forensic testing in this country is entirely inadequate. We have not invested as we needed to do in it. That is a point that we made in the all-party group’s report. The result is that the Misuse of Drugs Act 1971, temporary class drug orders and the whole apparatus of the Advisory Committee on the Misuse of Drugs are underresourced and unable to deal with a problem of the scale, complexity and pace of change that we have to deal with in respect of new psychoactive substances.

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[Lord Howarth of Newport]

Has the Minister held discussions with his counterpart Ministers in the education department? The evidence given to the Home Affairs Select Committee was that the majority of schools provide drug education only once a year or less. As far as the national curriculum goes, they are required to provide some sort of drug education within the science curriculum, but that is just about it. PHSE has only a toehold in school education. This is not the right way to help young people develop the resilience and capacity to take their own responsible decisions. A great deal more needs to be done in our schools.

[Lord Taylor of Holbeach]

I note the noble Lord’s point. I assure him that communication across government on this is very vigorous. I am sure he will agree that schools are not the only place where you can communicate with young people. We live in an age where there may be other less formal ways of conveying this message. I think the Government are right to see issues such as this also in those terms. I hope he will understand that our strategy is multifaceted; it is not just the single point that he made. The legal high trade is very resilient. It is inventive. There is no silver bullet for dealing with it. We need to ensure that whatever we are doing is equally resilient and effective.

The noble Lord, Lord Howarth may have been referring to a meeting of the Home Affairs Select Committee last week, at which my colleague Norman Baker, who is the Minister now responsible for drug policy, advised the committee that he is particularly keen that we look at all the options for tackling new psychoactive substances and learn from other countries in that regard—the noble Lord referred to New Zealand, for example—and that is what we are doing. However, even though this area is a cause for concern, caution needs to be exercised before we take any further steps. The possible unintended consequences need to be fully understood. That is why I think that the speeches of my noble friends Lady Hamwee and Lord Paddick, along with the excellent speeches from the noble Baroness, Lady Meacher, and the noble Lord, Lord Howarth, demonstrate that they are right to be concerned that the amendment and this new clause are deficient.

With this in mind, the move away from an evidence-based approach to drug harm that Amendment 56NA could imply is not one that the Government can take lightly; I think noble Lords were right to point that out. We are committed—as indeed we should all be committed—to ensuring that our legislative response continues to restrict the supply of harmful new psychoactive substances, both in our communities and online, by providing UK law enforcement with robust and practical powers to tackle this trade.

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[Lord Taylor of Holbeach]

I promised to keep Peers informed of the outcome of that campaign, and will do so. However, it is quite clear that with some of those psychoactive drugs—I believe that I debated that issue with the noble Lord in Grand Committee, when we passed that legislation—the truth is that people may be dealing in those chemicals who are unaware of the illegality of their actions. I will keep noble Lords informed and I hope that we can move on.

[Lord Howarth of Newport]

Is it not a great difficulty that neither the police nor trading standards officers have the means to test those substances and find out what they are?

[Lord Taylor of Holbeach]

They have access to the means to test the substances, which is a reasonable enough basis on which to alert the people running those premises that they might be dealing in illegal drugs.