Psychoactive Substances Bill [HL]

Lord Kirkwood of Kirkhope Excerpts

Tuesday 14th July 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, the noble Baroness, Lady Meacher, is right to avoid the use of the word “novel” or “new”. The problem is that what may be new or novel today may not be so next year. What we are seeking to do in this legislation is to create a series of criminal offences, and the prosecutor will need to be very precise in leading evidence to satisfy the requirements of the definition. A solution along the lines suggested by the noble Baroness, supported by the noble Lord, Lord Howarth, avoids that word, which lacks the precision that is needed. Of course, the word new or novel is widely used in common parlance, but that is not really the test that should be applied for legislation such as this. I am therefore sure that the noble Baroness was right to find some other form of wording, and the one she has suggested avoids that difficulty.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I want to make two quick points as a codicil to this important group of amendments. I strongly support the attempt of the noble Baroness, Lady Meacher, to insert the word “synthetic”. As a former pharmacy graduate—non-practising—who studied such things, to me, the word “synthetic” makes perfect sense in this context, and it would make the Bill a lot clearer. I also support the amendments in this group that would reintroduce the concept of harm, which the 1971 legislation introduced in a way that has stood the test of time. Indeed, I am behind the thrust of all these amendments.

My noble friend Lady Hamwee referred to the Committee stage of this Bill, which the ministerial team dealt with in an exemplary way; it listened very carefully and did the best it could. But any Member of this House who has had the advantage, as some of us have, of reading the recent letter from Professor Les Iversen and the Home Secretary’s response of a few days later, will be left, as I certainly am, with a real concern about the difference in tone between the two approaches taken. I and many others expressed the concern in Committee that the Advisory Council on the Misuse of Drugs was being written out of the script. I use that harsh language deliberately, although I am not blaming the Minister.

On the second page of his letter, Professor Iversen says:

“The ACMD … wishes to present its concerns that the Bill, as drafted, may not achieve its aims”,

which is a pretty fundamental thing to say,

“and may produce serious unintended consequences”.

The heading of the subsequent paragraph states:

“The omission of the word ‘novel’ has widened the scope of the Bill”,

which all of us on my side of the argument were arguing against with the Government Front Bench. The heading of the next paragraph states:

“The psychoactivity of a substance cannot be unequivocally proven”.

Again, with my academic background, I support that view, which is the one taken in Committee. The heading of the next paragraph states:

“The Bill uncouples the concept of harm from control of supply, importation and production”,

which is the point that the noble Baroness, Lady Meacher, and others were making.

What relationship do the Government really have with the ACMD, given that they seem to be so far apart? We had a manifesto commitment which talked in yellow journalese about,

“a blanket ban on all new psychoactive substances, protecting young people from exposure to so-called ‘legal highs’”.

That is the kind of language we would see in manifestos, and a few short weeks or months afterwards we get this Bill, which seems a long way away from Professor Iversen and his colleagues. That is a concern to me. I do not blame the Minister, by the way, but that is a concern that this House is right to reflect on Report. Admittedly, there are proceedings in the House of Commons and I am sure that the Minister’s approach in Committee—the way that he was prepared to pick up points and reflect on them—will continue. I have been in this business a long while and I can see a long distance between these two bits of correspondence. The Minister has some work to do to persuade this House on Report that that gap is not dangerous and that people may not get hurt unless this is sorted out before the final passage and Royal Assent of this Bill.

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The level of seriousness of the offence and the likely associated sentence send a message about how a particular kind of offence is regarded and will be dealt with both now and in the future. I hope that the Government will feel able to accept the amendment, which does not weaken but strengthens the Bill and identifies a further area of particularly serious concern where psychoactive substances are supplied in addition to the vicinity of a school already covered in the Bill; namely, on prison premises. I beg to move.

[Lord Kirkwood of Kirkhope]

My Lords, Amendments 18 and 20 in this group are in my name and that of the right reverend Prelate the Bishop of Bristol. The theme is the same as that of the other amendments: we are talking about the aggravation clauses in the Bill. Our amendments would enhance the protection available to children under the aggravation clauses in two simple respects: first, by making it a statutory aggravating factor where children live in supported accommodation and are being importuned by potential offenders pushing drugs outside that accommodation; and, secondly, for “vulnerable child” to mean young adults under the age of 18, particularly 16 and 17 year-olds.

I am grateful to the Minister and his officials for their time. Together with the Children’s Society we had a productive exchange, which I found encouraging. I am also grateful for the amount of work done by the church because I know that it has first-hand experience and works closely with the Children’s Society. I hope that the right reverend Prelate will add some of his wise counsel and experience to this amendment.

Two points were fairly made in the course of the meeting yesterday and I shall summarise them quickly. The Minister’s view is that the non-statutory Sentencing Council’s guidelines as currently cast are sufficient. Having reflected on that—it is a fair point to make—I think the House would need to bear in mind that sentencing guidelines are, after all, merely additional factual elements that the courts are not obliged to consider when they weigh in the balance whether to upgrade or downgrade the severity of the sentence in the context of the facts and circumstances of the case in front of them. I do not think we are in agreement on the relative value of non-statutory versus statutory aggravating circumstances and I hope the Minister will reflect on that.

The evidence available to me is that young, vulnerable children are a magnet for drug-pushing offenders. Drug pushers know how to target them and there is evidence that that is happening. There is evidence from the Children’s Society, which I had not seen before—it makes sense when you think about it—that there is an unjustified, assumed prejudice that the hoodie image of a 16 to 17 year-old equates to young people being the authors of their own misfortune. In an insidious way, that plays into some elements of the criminal justice system which think that they are not in need of protection. That is wrong. We need to be clear that many of these 16 and 17 year-olds, although they may present publicly in a threatening or quasi-threatening way, are vulnerable and that some of their behaviour is a result of the damage they have experienced in earlier stages of their lives. We need to discount the negative attitude to younger people when we are considering the protection that they need. They are specifically targeted, both sexually and criminally, by the criminal fraternity. They are very vulnerable and protecting them by making the aggravating factor a statutory protection would help them.

At the meeting yesterday, the Minister again fairly made the point that it is quite tough—the noble and learned Lord, Lord Mackay of Clashfern, made a valuable contribution against me—to define an area outside sheltered accommodation because how would the potential offender, the drug pusher, know that he was outside such a premises? The evidence from the Children’s Society that I saw was compelling. I am not saying that the noble and learned Lord, Lord Mackay of Clashfern, is naive, but in this day and age it is naive to think that people who are about this kind of nefarious business do not know precisely where the 16 and 17 year-olds who are most vulnerable can be found. It would only take you 10 minutes in any local community to find out information of that kind. However, it is difficult to define in statute. When you are trying to prove mens rea beyond reasonable doubt, that is not a defence. It is too easily available to offenders who are arraigned at the bar on a charge of that kind.

My response to that would be that for that reason there is not a great deal of difference between that and being outside a school. The definition of being outside a school in the sentencing guideline is broadly drawn. It includes bus stops on the way to school and places where children gather an hour before and an hour after school. It is not only standing at the school gate that would be a bang-to-rights aggravating factor in the circumstances of any case. The context of supported accommodation is pari passu with the school provision that already exists in the 1971 Act. Indeed, these amendments seek to create a parity and similarity. They are modelled on the provisions of the Misuse of Drugs Act 1971.

These amendments seek to send a strong signal to members of the criminal fraternity that if they do this they cannot avoid the consequences of an aggravating factor being introduced into their sentencing. They will ensure consistency with the provisions of the 1971 Act, oblige courts to take such circumstances into account and increase protection for vulnerable 16 and 17 year-olds.

Again I thank the Minister and the right reverend Prelate for their support for these amendments. These may be narrow points but for the young people for whom we are trying to provide additional protection they are extremely important. I am grateful for the careful consideration the Minister has given to these points and I look forward to hearing what his attitude is now that he has had the chance to reflect further overnight on the useful meeting we had yesterday.

[The Lord Bishop of Bristol]

My Lords, I was glad to add my name to the amendments in the name of the noble Lord, Lord Kirkwood, and I thank him for his clear exposition of why they are important. They are intended to strengthen the legislation although, as a result of the conversations with the Minister yesterday, we recognise that there might be some practical difficulties around them. Nevertheless, I hope the Minister will listen carefully and continue the exemplary way in which he has been prepared to engage with colleagues on this issue. I thank him for that.

These amendments are important for a number of reasons. First, those of us who have any kind of jurisdiction around our cities at this time know full well that there are ruthless men and women who will go to any ends to exploit whoever is exploitable—and, of course, children and young adults are a very exploitable group.

Secondly, the Children’s Society—I am grateful for its briefing around this subject—recently polled some 16 and 17 year-olds who had felt the pressure to take drugs and to misuse alcohol. Those who have been able to withstand that pressure made it very clear that the reason they were able to do so was the positive impact of their families on the decisions that they might or might not have made. The flip side of that is that children who have no family in their immediate vicinity are made even more vulnerable by the fact that they may not be living with their family or may have lost contact with them altogether. This is a strong reason for the Minister to give careful consideration to these amendments. As I say, they are meant to strengthen this legislation.

Drugs in general but alcohol and psychoactive substances in particular are supplied not as an end in themselves but as a tool to groom children. Last year in my city 13 men were imprisoned for giving alcohol and drugs to young women and girls, some as young as 13. In return for supplying them with drugs, the girls were expected to have sex randomly with older men. I am sure that all noble Lords are repelled by such things.

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[Lord Kirkwood of Kirkhope]

I am grateful to the Minister for that very helpful suggestion. For the avoidance of doubt, the intention of our amendments is to treat school environments and supported accommodation environments pari passu within the legislation so that they are on a par. I am agnostic about where the provision lies as long as they are treated equally across the legislative platform.

The other thing, of course, is that there is a different set-up in Scotland. I hope that the offer the Minister has made to write would be to other jurisdictions and criminal justice systems within the United Kingdom—if he has that power.

[Lord Bates]

I am looking for counsel from the noble and learned Lord, Lord Hardie, as a former Lord Advocate, as to whether we have that power. We talked about that yesterday. I think Scotland is in the process of establishing a sentencing council—