Psychoactive Substances Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 30th June 2015 Lords Chamber

I say again that if we were to legalise and regulate, selectively and strictly, certain drugs, it would open the way to transferring substantial funds away from policing and the criminal justice process into treatment. One dimension of the Government’s anti-drug strategy is building recovery. I would be grateful if the Minister will give his assessment of the success of the building recovery part of the strategy.

[Lord Mackay of Clashfern (Con)]

My Lords, it is important that in this Bill, it is not proposed that there should be a criminal offence of possession of psychoactive substances. In due course we shall see how that works, and it may well be that the lesson to be learned from that could have an effect on the older legislation to which the amendment refers.

As I understood the noble Lord, Paddick, he said that one of the successful police techniques is the conditional caution, which of course depends on the underlying offence—that is the power on which the conditional caution rests. It is an extremely valuable approach to this difficult problem. I agree entirely with what has been said about how difficult a problem this is. I have no doubt at all about that and I do not need to reiterate the point. The conditional caution has a degree of authority behind it to persuade the person who receives it to do what it requires him to do. That is extremely important. The difficulty I have with this amendment is that if a senior officer suggests or requires that someone should attend one of the systems as defined by the Secretary of State in a later amendment, there is not much power to ensure that that will happen.

It is a long time since I had experience as a judge in criminal cases involving drugs where possession was an issue, but I distinctly remember the sadness I felt when sentencing a lady with a young child who had been in possession of quite substantial quantities of prohibited drugs. As the sentencing judge, I had the power to invite her to subscribe to a programme as a condition of her probation, rather on the same principles as the conditional caution, except at a slightly more authoritative level. The lady was obviously very attached to her child and there was a risk that if the situation continued, she might be separated from the child by the social work authorities. I was keen, it if was possible, to help her get out of that situation. A good programme aimed at helping people out of addiction was being run in Glasgow at the time. I got her agreement to attend the programme, subject to the probation order, which, as noble Lords will know, meant that if she left the programme she had agreed to attend, there would be other possible consequences. It was to my extraordinary sadness to discover that after she had been getting on well for a few months, she suddenly left. That is one of the difficulties of a programme which has no authority to continue.

I am not good at getting into the minds of very young people, for reasons which are obvious, as the noble Baroness, Lady Meacher, would attest, but there is the question of the psychology of all this. There is also the question of a level of authority, so that the treatment becomes something a person is required to undertake in order ultimately to get out of the criminal justice system. I agree that this is an important matter, and it would be good to see how the regime set out in this Bill works. It might have a good lesson for the existing legislation.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I apologise to the Committee: I did not speak at Second Reading, but I would like to make a brief contribution at this point and to ask a question. Following up on the issue of alternatives to formal action being taken by the police in introducing people to recovery courses, I should say that I have had a good deal of experience over many years of dealing with people with drug and alcohol addictions. There is a big question mark over whether the addictive personality ever truly recovers, in the sense that people talk about recovery, because people often switch from one addiction to another, but they reach a stage at which they can maintain their addiction and lead a good life. However, it has been my experience that, before they get to that point, no one can undertake a course or programme of any sort unless they have an inherent willingness and desire to recover. One drawback, unexplained in the amendment before us, is this: what does one do with the literally very high percentage of people who will want to opt for this course because it is the soft option, but who have no intention whatever of displaying the willingness and commitment required to achieve recovery?

--- Later in debate ---

[Baroness Hamwee]

My Lords, I will speak also to Amendments 31, 32, 33 and 34. In view of the debate on the previous amendment, I should declare that some of my friends say that, when doctors ask the question, “Does anyone ever comment on your drinking?”, I should say yes because I drink so little. On the other hand, coffee and chocolate—now, there you are talking.

I am concerned about the definitions in Schedule 1. For example,

“‘caffeine products’ means any product which … contains caffeine, and … does not contain any psychoactive substance”.

I am bemused by this. It must mean “does not contain any other psychoactive substance”, in which case we should say so. We have heard that the Government will be responding to the Constitution Committee. I will not say that the committee was also bemused—that would be very disrespectful—but it pointed out some issues with the relationships between exemptions and so on. We await the response.

The first three amendments are all the same and the fourth one is, in essence, the same as the first three. The last amendment in this group refers to instruments relating to food. The noble Lord, Lord Blencathra, talked about the amount of EU regulation on this issue. I am interested in the words,

“the use of which in or on food is not authorised by an EU instrument”.

Should it not be “an EU or other applicable instrument”, which is what I am suggesting?

Even if there is no secondary legislation or any ruling which applies to this, perhaps we should future-proof it in case there is. I beg to move.

[Lord Mackay of Clashfern]

My Lords, the “other” must be implied and I see no reason why it should not be expressed. I think the amendment carries itself fairly easily.

[Lord Lucas (Con)]

My Lords, I do not like having a law which states as a fact something which is clearly wrong. I hope my noble friend will therefore accept these amendments, in spirit if not in the exact letter.

--- Later in debate ---

[Lord Blencathra]

I must say to my noble friend the Minister that I have considerable sympathy with the amendments in the name of the noble Lord, Lord Kirkwood of Kirkhope. This seems to be entirely the same sort of situation as providing drugs outside schools—perhaps even more so. I accept the argument that, per head of population, the people in what I would call a children’s home—I do not know the modern, politically correct term for a children’s home, but those in residential care or whatever—are more vulnerable than the generality of kids in schools. As the right reverend Prelate has just said, some of the children in there will already have had problems of potential criminality or being vulnerable.

I discovered at the Home Office that once you put children together in a residential place like that, they are not locked up at night; in the main, they are free to come and go, and then they are liable to be preyed on by every sort of predator in sight, for sexual abuse and drug use as well. If my noble friend the Minister is going to reject the amendments at this stage, I hope he and his officials will give them very careful consideration because they are an absolutely sensible, logical extension of the policy towards selling drugs outside schools to children. These children are even more vulnerable.

[Lord Mackay of Clashfern]

My Lords, I support both sets of amendments, on prisons and vulnerable children. It strikes me that these are quite clearly aggravating factors and we should do everything we can to prevent these drugs being introduced to prisons and to vulnerable children.

[Baroness Hamwee]

My Lords, Clause 6, I believe, replicates almost exactly the provision in the Misuse of Drugs Act. Without commenting on either of the areas of concern, although I quite understand the concern, my question to the Minister is: have the Government had any advice about extending the list of aggravating factors generally? Right at the start of Committee we raised the issue of a review of the Misuse of Drugs Act. This is the sort of thing that could well come within the scope of a review.

The Minister will explain to the Committee in a moment the one word which would be different from Section 4A of the Misuse of Drugs Act and that is in his Amendment 43 to Clause 6(6). The MDA talks about delivering a controlled drug to a third person. Like the original drafter of this provision, I would have thought that referring to a psychoactive substance is logical and if we take out the word “psychoactive”—unless we are going to be told that that is what we have to read into it—it would seem to mean that if someone under 18 delivering anything to another person in connection with an offence falls within this. But I had better not further anticipate what we will be told about this.

--- Later in debate ---

[Lord Bates]

As one would expect, the justice department will have been consulted and was part of the discussions in preparing the Bill. I note the reference that the noble Lord made to the remarks of the Justice Secretary in another place. I will certainly reflect on those and make contact with the Ministry of Justice again to ensure that its views are fully taken into account in the approach which I have outlined. Given that it has lead responsibility for prisons policy, I would expect those to be exactly as I have said.

[Lord Mackay of Clashfern]

Before the noble Lord says what he wants to do about his amendment, does not the fact that certain matters have been selected for aggravation make it somewhat more difficult for a judge to take a factor which is not made specific and give it the same weight? It slightly worries me that if you do not mention prisons and vulnerable children, while a section in the Bill does mention specific aggravations, that will tend to reduce the possibility of the two factors that we are interested in being regarded as aggravations. I assume that the judges’ reaction would be, “Parliament has not thought to mention these, and therefore it is not really quite so serious”. Whereas if Parliament has mentioned it—and prisons strikes me as an issue of particular importance—that is something we should emphasise for the judge who has to deal with this matter.

[The Lord Bishop of Peterborough]

My Lords, I support the aggravated category for prisons and the particularly vulnerable children who are, in one way or another, in care. I am very grateful for what the Minister said about having a meeting on children in care. That is good and I am happy to accept it, but from my fairly regular visiting of prisons in my diocese—I have visited the four that were there but two of them are now closed—I know that the great majority of prisoners are themselves highly vulnerable and need to be treated as such. It seems that so many young men and young women find themselves in prison having started off with drugs in one way or another. They have been used and abused, often as vulnerable young people, and end up in prison still as relatively young people. They are extremely vulnerable to exploitation through drugs, so this really should be another aggravated category.