Psychoactive Substances Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Lord Rosser]

I can only say that I am not aware that it is currently Labour Party policy to press for such a review.

[Lord Mackay of Clashfern (Con)]

My Lords, it is wise to remind ourselves of what has been going on in relation to these substances in the past year or two. The system has been that, once a new substance is discovered, the procedures of the Misuse of Drugs Act have been used to add that substance to the prohibitions under that Act. It seems to me that the trouble with that is that it is very late in the day in relation to the emergence of the new substance. The purpose of this Bill, as I understand it, is to eliminate that particular difficulty and to make the provision operate in a general way so that you do not need to move, as in the past, during the emergence of a new psychoactive substance. So, that is what Parliament has been doing for some time. This seems to me to be a much better way to handle the problem than what has been available in the past.

[Baroness Meacher]

I would like to point out that the Government introduced what I consider to be a very good instrument, the temporary class drug orders. These could be sped up. You can, or should be able to, put an order in place quickly for a 12-month period while an assessment is undertaken. If the drug is not deemed to be safe, it is placed under the Misuse of Drugs Act. There is an instrument in place.

[Lord Howarth of Newport]

From all his experience, does the noble and learned Lord anticipate that there may be problems in the criminal justice system over definition and establishing that a substance is indeed psychoactive; and that in the case of individuals it is their intention to supply illegally? Also, does he have any anxieties about the practicalities of enforcement? In the interests of the courts and of wider society, it is important that legislation that lays impossible burdens on the police, HMRC and other enforcement authorities is not enacted. They are going to have a large, complex and difficult additional set of tasks under this legislation, at a time of diminishing resources.

[Lord Mackay of Clashfern]

The impact assessment to some extent deals with that. It is plain that the difficulty has arisen in relation to the emergence of new substances whenever a particular prohibition is enacted. I hear what the noble Baroness, Lady Meacher, says about this. The problem is that by the time the enactment takes place, considerable harm may be occurring. The idea of this Bill is to prevent the production of these dangerous substances as a general matter of course.

[Baroness Bakewell (Lab)]

Perhaps I might add to this conversation about the need for evidence. At Second Reading, on the matter of addressing the damage being done to these young people, Ireland was cited as evidence of the effectiveness of legislation.

I refer my colleagues in the House to a report made by a fellow journalist at the BBC. Following Second Reading he went to Ireland to examine what is happening with the Bill. Young people there are taking a great many of these legal highs. He found that one young man had hanged himself from a tree in the middle of the estate where he lived. The parents were frantic. In County Monaghan and in a number of towns my BBC colleague found that there was an abundance of these drugs, and that young people were turning to them.

After this young man’s suicide the police seized 34 grams. They offered it to the scientists, who analysed its contents. They said that they were not able to prove that it was a psychoactive drug. At that point the police were stymied procedurally, because the scientist to whom they turned could not verify the evidence they needed. My colleague speculated in a conversation with me that the police were turning back to the Misuse of Drugs Act 1971, because they did not know how to handle this matter.

What ties this issue, Ireland and legal highs to the amendment is that young people are turning to legal highs because they cannot get natural cannabis. That is the crucial link. If we are to stop these young people doing such terrible damage to themselves, we must consider the broader spectrum of motive that turns them towards these legal highs. Young people do not grow up knowing about them. They grow up in a community that perhaps 20 years ago was using cannabis plant. Now, the whole drugs business has accelerated to such an extent that millions of pounds can be made through criminal behaviour, and that has driven the legal drugs industry to invent more substances to market to young people. It is a desperate situation, but we need to examine and unpick the motives that drive young people into this market. That is at the heart of this amendment and the conversation about the Bill.

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I believe that cannabis should be listed in Schedule 2. The Government’s own Drugs: International Comparators report told them that the relative severity of different regimes makes no difference to the incidence of recreational usage. The fears that are associated with allowing, or facilitating, the medical use of cannabis are overstated and inappropriate. People should be prescribed cannabis-based medications, when appropriate, on a consistent basis across the United Kingdom.

[Lord Mackay of Clashfern]

My Lords, as far as I am concerned, the issues that have been raised in this debate are certainly ones that Ministers in the two departments would be well advised to consider. However, I wonder about the procedure that is proposed here for carrying out this amendment.

Amendment 50 states:

“Within six months of the passing of this Act, the Secretary of State shall make regulations to amend the Misuse of Drugs Regulations 2001”,

and so on. The procedure for that is already laid down. I doubt whether it is correct for another Act of Parliament, as it were, to overrule the arrangements made in relation to that. That is rather technical but it is perfectly reasonable that the matter should be looked at by the Ministers.

[Lord Rosser]

As has already been said, one assumes—though life is full of surprises—that the Government’s response will be in line with the Answer that was given in this Chamber on 17 June to an Oral Question from the noble Baroness, Lady Meacher.

This Bill deals with a particular issue—psychoactive substances—on which there is surely a need for specific separate legislation. The amendment we are discussing appears to be a considerable extension of the Bill, and an extension of the prescription of cannabis, which can be very harmful. One would not have thought that one would want to go down that road without clinical evidence and trials indicating that it was the right road to take and, if so, in what circumstances, for what drugs, and based on whose advice. No doubt I will be corrected if I am wrong, but I understand that at present the approach suggested in the amendment does not, for example, have the support of the Advisory Council on the Misuse of Drugs. Nevertheless, I await the Government’s response with interest.

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It may be that in view of that offer from the Minister, I do not need to continue with this speech. I was going to give examples of how these things happen, but if we are going to have a dialogue about a genuine impact assessment of the Bill when it becomes law, I hope that we are all on the same page at this point. On that basis, I beg to move.

[Lord Mackay of Clashfern]

My Lords, I just wonder whether it would be for the Secretary of State to monitor this. I would have thought that the importance of this topic, particularly in the light of the concerns that the noble Baroness has expressed, would merit post-legislative scrutiny by a committee—usually a Joint Committee of both Houses—rather than by the Secretary of State. There is room for that sort of consideration to be kept in mind. I think that the Minister has given at least some encouragement to that and I certainly think that that would be a good thing to do, rather than have the Secretary of State in a sense being his own monitor in this area. It is better that it should be independent, in the sense of being done by Parliament.

[Lord Howarth of Newport]

My Lords, I suggest that post-legislative scrutiny would be assisted if the Home Secretary, on behalf of the Government as a whole, were to make an annual report to Parliament along the lines that the noble Baroness, Lady Meacher, has suggested. I propose that an annual report from the Government as a whole should cover the three principal strands in the drug strategy introduced by the coalition Government in 2010: reducing demand, restricting supply and building recovery.

I hope that the annual report would begin with a presentation of the facts, in so far as they had been ascertained by the Government, and that it would cover developments in the usage of drugs of all sorts: controlled drugs, psychoactive substances under the terms of the Bill, exempted substances under the terms of the Bill, and prescription drugs of which there is abuse. I would also want to see a breakdown by age groups and by regions. We need to know about consumption patterns—whether the consumption of one drug is being displaced by consumption of another; what new drugs are available to consumers in this country; what the most popular ones are, and the ones about which there is the greatest cause for anxiety. We need to know about developments in purity, potency and toxicity.

I hope that the Government would advise Parliament on the development of markets in drugs and tell us what us has happened to the head shops, year by year. Maybe they will all close down quickly, as in Ireland. If so, I hope that the Government would then tell us where people are finding their drugs—perhaps from online sources such as the surface web, but perhaps from the grey net or the dark net. All this is usefully discussed in a preliminary way in the latest annual report from the European monitoring centre. But 18 months ago, the European monitoring centre reported that there were 651 websites selling drugs to Europeans. We need to know what the evolution of this online market is and about the shifting locations. The noble Lord, Lord Bates, told us just now that, following the legislation in Ireland, Irish web-based domains were closed down. But we know that at the same time the consumption of new psychoactive substances has risen in Ireland. Where, then, are Irish consumers obtaining their drugs? We would need to have that equivalent information here. We need to know about patterns of social media use relevant to the drugs trade and what is happening in terms of street markets and gangs.

I hope also that the Home Office would report to Parliament on the drugs situation in prisons, which is an extremely disturbing situation, one understands. Which drugs are most in use in prisons? How have they been obtained? The Home Office should report on any issues there may be about corruption in the National Offender Management Service; on the effectiveness, as it believes it to be, of the means it is using to try to reduce drug consumption in prisons; and on the effectiveness of rehabilitation. Very importantly, the Home Office needs to report on the question of continuity. What happens to prisoners when they leave prison? Do they continue to have the benefit of rehabilitation services? What is the relapse rate? The noble Lord, Lord Ramsbotham, told this House, perhaps a couple of years ago, that the Chief Inspector of Prisons had reported that in Her Majesty’s Prison Oakwood it was easier to obtain drugs than soap. We need to know what progress the Home Office and the Government as a whole are making with regard to prisons.

We should be advised on the Government’s dealings with the Advisory Council on the Misuse of Drugs—what advice they have sought from the council, what advice they have received from the council, what advice they have accepted from the council and what advice they have rejected from the council. In the case of rejection of the council’s advice, I hope that the Government would offer a reasoned explanation as to why they have declined to accept the advice that the ACMD has given—as has occurred on a number of occasions in recent years.

We should be told what drugs have been newly controlled under the Misuse of Drugs Act regime and about how, in practice, the relationship between the various relevant regimes—the MDA regime and the regime created under this legislation in respect of psychoactive substances and exempted substances—relate to each other, and whether it is effective co-ordination or the Government see problems in having at least three different systems of regulation operating concurrently. I hope that we would hear about the dealings of the Government with other consultees and partners: people with academic expertise, the voluntary sector, non-governmental organisations and other expert organisations.

We should be provided with information about the state of forensic services, about which the Home Secretary has recently expressed her own personal anxiety. We will come a little later in our proceedings to talk about the possibility of a network of testing centres. Do the Government think that that is desirable? If so, what progress is there in making testing facilities widely available around the country? We will need a report on progress in education and training, but, again, we will have an opportunity to discuss those issues more extensively a little later.

I hope that we would hear about the impact of drug usage of all kinds—controlled drugs, psychoactive substances and the exempted substances—on health, society and the economy. The European monitoring centre has particularly asked the Government to monitor acute drug-related harms. Again, I would expect to see their response to the EMC reflected in the report. Of course we would want to know about the progress of treatment and engagement strategies with different groups of consumers or people at risk.

We should hear a report on enforcement and the strategies of the NCA, the police and Her Majesty’s Revenue & Customs. If the online trade is thriving, and if that is becoming the principal source of supply, we should be advised what percentage of postal packages, for example, the system is able to check for drugs. We should also know what percentage of shipping containers the Government are able to inspect.

Surveillance will be another important component of the report. What powers are the Government using to ascertain what is going on in the drugs trade, particularly the online trade? We need to know the statistics on the usage of data-search powers and have an assessment of their effectiveness. Perhaps a little later, the Minister will give us some preliminary thoughts on how the enforcement regime that the Government are proposing to create through this legislation will relate to the new surveillance regime, which we understand the Home Office will introduce later in the year. Undoubtedly, these things will need to be understood in conjunction.

The Bill creates powers of prohibition notices and prohibition orders, and we would want to hear about the incidence and effectiveness of the use of those powers. We would want to know the number of seizures and successes, but also about the challenges that the Government identify. The new stop-and-search powers created in the Bill are another appropriate subject for report and we will debate those towards the end of Committee.

We would need to hear about the Government’s progress in dealing with the problems of money laundering and the extent to which the proceeds of the drugs trade are thought to be funding terrorism. We will need to know about the costs of enforcing this regime—not just to the NCA, the police and HMRC but to the Financial Conduct Authority, which I think has lead responsibility for dealing with money laundering; the criminal justice system, which, for example, will incur costs in hearings in the attempt to establish definitions of psychoactive substances; and the Foreign and Commonwealth Office. At Second Reading, the Minister was kind enough to say that he would follow up the point I made previously, that when mephedrone was banned, the Government did seek to come to an understanding with the Chinese authorities so that they would facilitate the effective interdiction of supply. However, it appears that that did not work very well because production shifted to India. We will want to know what part the Foreign Office is playing in assisting the Home Office to make a success of its strategy.

The local government dimension is hugely important. The Minister has explained that the Government are acting in response to pleas from the Local Government Association, and we all understand how very unpleasant and difficult it is for people if they have head shops in their neighbourhoods and the anti-social behaviour that may be associated with that. But there will be costs for local government in training and maintaining in the field the numbers of trading standards officers that are going to be needed and, I dare say, in prevention, more youth workers. Again, it would be useful to know what is going on there. The Department of Health will have a whole complex story to tell.

I think that the Government would owe it to Parliament to provide in the annual report a cost-benefit analysis of the overall strategy: have they found, with experience, that the policy is working as they hoped? How does it need modification? What do they see as the way forward?

I acknowledge that all this may make for quite a long report, but I think that it would be very interesting and worthwhile and a very useful form of accountability of government to Parliament.

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[Lord Bates]

I am happy to do that—let us set the matter out in writing. However, I want to state two basic principles that I hope that the noble Baroness in particular may just accept and will enable her to withdraw her amendment. First—going back to the first point—is that what is being sold in our streets and in head shops has never been tested on anything or anyone, yet is consumed by people in this country. That is the basis on which we are taking action. Secondly, we are mindful that the skilled perpetrators, manufacturers and distributors of this drug are in the sights of this legislation because we want to target them rather than the individual user. When they see a written definition they then go and find a potential loophole, something else appears on the market and the Bill becomes ineffective. We want to avoid that. Those are the two principles in play.

In the context of those two principles I am very happy to write with more detail on the mechanics of how that might be done, and perhaps a little more—looking at the Bill team—about the process we went through in consulting, to arrive at this definition. I hope that that will be helpful to the House and I undertake to do it before Report.

[Lord Mackay of Clashfern]

My Lords, when we talk about “banning”, we mean the substance being used to commit an offence under the Bill. There are two ways of reaching that conclusion. If you see someone taking a tablet or a substance and suddenly his mental state has been altered, cause and effect is likely to be demonstrated. The second way is that if you know the nature and qualities of substances, when you analyse the substance you may be able to do it that way too.

The important thing, however, is that it is not a question of the substance not being banned until you discover it: the definition applies right from the beginning. As the Minister said, when the Bill becomes law, substances with that character become the possible ways of committing the offence. The question of whether a particular substance is of that character can, I think, be approached in these two different ways, according to what is convenient in the circumstances of the individual case.

[Baroness Hamwee]

My Lords, before the noble Baroness responds, may I ask a question? It will display the depths of my ignorance, which will gratify the noble Lord, Lord Harris, who can never resist teasing me. If one has a herbal product and it is genetically modified, does that make the outcome synthetic, or does it remain herbal?