Psychoactive Substances Bill [HL]

Lord Mancroft Excerpts

Tuesday 9th June 2015 Lords Chamber

[Lord Mancroft (Con)]

My Lords, I am very pleased to welcome the Government’s attention to this important issue. Drugs use is an extraordinarily complex political issue, which is why it has proved so intractable. It is also one of the most damaging social issues in the UK today. The cost to the criminal justice system of dealing with drugs is, at the last count, about £12 billion a year and rising, so it is not cheap.

We have before us today a Bill that implements a policy that I thought, until the noble Lord, Lord Paddick, spoke, was agreed by all three main political parties in their manifestos, although apparently not the Liberal Democrats. I do not know whether it is agreed in the Scottish National Party manifesto because, although I am sure it is a cracking read, I have not got round to it yet, but I am sure the SNP will support us in spirit if not otherwise. As many noble Lords have said, it is also supported by an expert panel. I have been around a long time, and I tend to think that when all political parties agree about something, particularly when they are supported by an expert panel, they are probably heading in the wrong direction, but that is the way things are.

It is helpful to start where the noble Baroness, Lady Meacher, started by seeing what we have in common. Every speaker in this debate, those listening to it and those on the Front Benches are all motivated to try to reduce the harms drugs do, particularly the health, social and criminal harms. The noble Lord, Lord Paddick, who is not in his place, talked about his experience. I, too, had great personal experience of drugs, experience I would rather not have had, many years ago. That gave me an interest, which I have developed. I have had a particular interest in drug treatment for about 28 years. For the last 15 or so years, I have also had an interest in drug prevention.

The noble Earl, Lord Sandwich, talked about the treatment of prescription drug addicts and used the word “feeble”. I say to him and the rest of the House that most of the treatment in Britain today is feeble. One of the reasons for that is that we do not spend enough on it. We spend just under 10% of our drug budget on treatment, and just under 1% on drug prevention. That is to deal with the demand for drugs. The sad thing is that we know that treatment works—we can demonstrate that—yet we spend so little time and focus on it.

Reducing the harm of drugs was the motive behind the Misuse of Drugs Act 1971. It is quite clear to those who have read the papers that that is what the drafters of that Bill were thinking at the time. Looking at it now, 45 years later, it is very difficult to come to the conclusion that the Misuse of Drugs Act, which aimed to prevent the distribution and use of drugs, including heroin, cocaine and cannabis, was an overwhelming success. This Bill is a response to a change in the pattern of drug use. Heroin, cannabis and cocaine were not really problems in Britain in the 1950s, but by the time the 1960s finished and the 1970s started they were becoming a problem, and the result was that the Government of the day introduced the Misuse of Drugs Act. Ten or 15 years ago, although we had psychoactive substances, nobody really used them as drugs, certainly not as recreational drugs, but that too has changed. Like other drugs, people take them for fun, but some people—thankfully a small minority, although it is growing because use is increasing—incur harm: mental health problems, physical health problems and, as we have heard, death. The Government’s response, which was explained carefully and thoughtfully in a measured way by my noble friend Lord Bates, is similar to that of the Governments in the 1960s and 1970s and is to restrict supply by use of a mix of criminal and civil sanctions.

The Bill, as we know, aims to ban the manufacture, sale, marketing, distribution and supply of all these substances. In practice, what it will do is prevent the sale of these substances by retail outlets—the so-called head shops, of which there are a few hundred here in the UK. Most of the substances sold are manufactured in China and India and have found their way here by post. The Government believe that the majority of sales take place via the head shops, the retail outlets, while acknowledging that a small but immeasurable amount comes via the internet and then the post. If you look at the evidence widely from around the world, and indeed from the various departments here, it is clear that the evidence is not as clear-cut as has been suggested. What is clear is that the amount of these drugs bought on the internet and coming in through the post is quite large and has increased, and there is no suggestion that it is going to do anything but increase in future. That is the lesson not just in the UK but from around the world.

My real concern is that the Bill will lead not just to a closure of head shops, which I am sure will happen, but to what happened after the Misuse of Drugs Act was passed in the 1970s: it will just mean a diversion of supply. The noble Lord, Lord Patel, and the noble Earl, Lord Sandwich, both drew attention to the problem of prescription drugs. In that case, the dealer is the biggest dealer of psychoactive drugs in Britain: the National Health Service. If it, with all its rules, regulations and committees, cannot do this properly, what hope does the Home Office have with one small Bill?

It is not just the manufacture and content of the drugs that are always one step ahead of the law; it is also the importation, supply, marketing and sale. The nub of the matter before us today is this: I share with the Government the desire that our children, grandchildren and godchildren, and indeed everyone else’s, should not take drugs, but I am not so naive as to believe that, whatever I or the Government say—and I do not set much store by government messages—children will not do that. Every scrap of evidence that we have tells us that they will and do take drugs, in exactly the same way that your Lordships will drop into the Bishops’ Bar for a drink after this debate, and for exactly the same reason.

Here is where I differ from the Government: when our children and grandchildren go out to buy drugs, I would infinitely prefer that they bought a product that was as safe as we could make it—safer than nicotine or alcohol, I hope—with its contents free for all to see, at a price that is reasonable, and from a regulated supplier, like nicotine, alcohol and, I hope, prescription drugs. Today the Government are ensuring that that will not happen and that the only suppliers of these products will be unscrupulous criminals, way outside the reach of the law, selling drugs to our children and grandchildren in the dark—the dark of the street corner or the dark of the web. Some will be caught; most will get away with it. Actually I do not really care what happens to them, but I care desperately about the young people who will be harmed and their inconsolable families.

My noble friend Lady Hollins talked about evidence. We do not have enough evidence. She talked about delaying the Bill. I doubt that the Government will; they never delay Bills. It is clear from the remarks all over the House that the evidence about where these drugs come from, and how they will arrive in future, is unclear. However well meaning the Government are, and I am quite certain that they are, all the evidence from the past 40 years is that attempts to control the supply of drugs have failed, and that tells us what might happen in future.

The Government cite as support for their case what has happened in Ireland and Poland. The Minister was kind enough to take the trouble to go through the Bill with me, and I am grateful for that. The Government clearly believe that the measures in Ireland and Poland have been a success. I have to say that the evidence I have seen, as for other speakers around the House, indicates that the early fall in drug use and its consequences in those countries have been reversed, and that the problems are now increasing and will increase further, as the noble Lord, Lord Rosser, suggests. Both sides cannot be right but it is clear that the evidence is not well-enough developed to form a balanced opinion, and to legislate without a balanced view, without being able to make a judgment, is a mistake.

In preparing for this debate I looked at the European Union’s contribution: its directive, which is 47 pages long. Rather like the SNP’s manifesto, it may be a cracking read, but I could not keep awake for all 47 pages. However, one part of it that jumped out at me from the page was where it said that the European Union’s own response was “inadequate”. To call your own response inadequate is quite something—and it needs another response. Whether the next one will be another 47 pages, I do not know.

Past evidence has repeatedly shown that a gap in the market is almost immediately filled by somebody else. More than that, a restricted drug is replaced by a more dangerous one, as we have already heard. That has happened in the UK in the past, and it will happen again now. Poly-drug users—users of lots of different drugs, which nowadays is everybody—are not by their nature very choosy.

Fascinatingly, in the Bill, for the first time ever, as other noble Lords have pointed out, possession for personal use will not be a crime. I would be fascinated to hear my noble friend explain the Government’s thinking behind that. I agree with it, but if it applies to these drugs, why does it not apply to all the other drugs, too? That would be the route to go down.

In politics, as in most things, timing is everything. All over the world today, the mood is turning against the war on drugs. The USA, South America and middle America, and other countries such as Afghanistan and Mexico, which have been torn apart by drug cartels and drug-related crime and which have enormous health and social problems, are slowly beginning to turn away from using the criminal justice system to solve what is a health and social problem. I admire the Government’s resolve and I applaud their motivation in seeking to tackle this issue today, but I wonder about their motivation, and whether they remember the story of King Canute.

Recreational drugs are a demand-led market. Before us today is another measure to restrict the supply of those drugs. It may or may not succeed; I imagine it will, to a certain extent. Past evidence is that it will not displace some supplies for very long. However, the demand following this measure will remain unchanged, and so the likelihood on the evidence we have today is that the demand will be met in another way, and that will lead us back to square 1.

--- Later in debate ---

[Lord Bates]

I hear what the noble Lord says and once again I appreciate the passion that he feels about the topic and his knowledge of it, but in a sense that debate went before this piece of legislation. We looked at that. I do not want to run through the whole list again but other people, including the Home Affairs Select Committee and the expert panel, all looked at that and came to the view that that was not the case. That is a point of wider drug policy. It is perfectly legitimate to continue to have that debate, but not in relation to the Psychoactive Substances Bill now before us, which is seeking to tackle a very specific problem in a way that we believe is in keeping with the expert opinion that we have had.

I recognise that the noble Lord, Lord Patel of Bradford, and many others—I keep saying this—have an immense level of expertise. I should, in mentioning expertise, say that I am very grateful to be assisted on the Front Bench by my noble friend Lady Chisholm, who also brings immense experience to this, from her understanding both of drugs and of their health effects. The noble Lords, Lord Rosser, Lord Patel, Lord Kirkwood and Lord Rea, asked about the Advisory Council on the Misuse of Drugs. Its 2011 report called on the Government to explore legislation for new psychoactive substances. The Home Office set up a six-month policy review, with a primary focus on looking at how law enforcement powers could be strengthened. Ministers informed the ACMD in October 2014 of the Government’s plans to develop the blanket ban approach. The Home Secretary has written again to the ACMD, and welcomes its views on how we strengthen the UK’s forensic capacity and capability to support the implementation of the legislation in 2016. The ACMD continues to provide expert scientific advice which is greatly valued by the Government. The Misuse of Drugs Act 1971 will remain the cornerstone of our response to dangerous drugs and the ACMD will continue to have the central statutory role in assessing the harms of specific new psychoactive substances and provide advice to Ministers.

[Lord Mancroft]

I am most grateful to my noble friend for giving way. In the course of what he was just saying, he talked of the Misuse of Drugs Act being a cornerstone. I understand that, but the Misuse of Drugs Act’s primary purpose was to restrict the supply of certain drugs—heroin, cocaine et cetera—and it has completely and utterly failed to do that. It has not restricted the supply; we have a massive oversupply. You could say that that is because time has passed, but the fact is that the Act has failed. If that is the cornerstone, and we are moving on to another stone in the same pavement, it is completely logical to ask why this new stone would succeed where every previous measure has consummately failed.

[Lord Bates]

My noble friend asserts that the Misuse of Drugs Act has failed. You can of course observe and point to the availability and prevalence of drugs within society and draw some conclusions, but one cannot make a direct comparison because, had the Misuse of Drugs Act not been in place in 1971, perhaps that situation and the situation that we are trying to address might be a whole lot worse.

What can you do in government? You can look at issues. We have parents, including Maryon Stewart, and the Angelus Foundation coming to us and urging us to take action and clamp down on these drugs. We read in our regional and national newspapers of horrendous situations—young lives lost and blighted. We see new drugs come on to the market branded as “plant food” and “not fit for human consumption”, as if that gets the sellers off the hook of their moral responsibility for what they are selling. Are we supposed to say “No, we do not take any action”, simply because there is an availability of drugs in society? Well, the Government do not take that view and nor did the expert panel, the Home Affairs Select Committee or any of the mainstream political parties in their manifestos. I am sure that this debate will go on, and it is good that we do this. I will now try to address some more of the particular points raised.

The noble Baroness, Lady Bakewell, and my noble friend argued the case and called for a more regulatory approach. As I indicated in my opening remarks, the expert panel considered the regulatory model along with others in operation in different jurisdictions, and concluded that it presented significant practical difficulties. Trying to define what we mean by low-harm substances would be a legislative and scientific minefield. For many substances, the evidence of chronic harm can take years to emerge, as can dependence potential. It is not clear how the harms could be properly assessed to medicine standards without animal and human trials. Do we really want to contemplate further animal testing for these purposes? I also remind the House that there have been no applications for licences in New Zealand—further evidence, if it were needed, of the difficulties of going down the regulatory route.

The question of definition was raised by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Patel. The Bill is designed to capture substances supplied for human consumption that have a psychoactive effect. Its aim is to capture substances that are not currently controlled under the Misuse of Drugs Act 1971 but that, as with all drugs, carry health risks when misused. Many new psychoactive substances are still legal due to the speed at which they are produced, with manufacturers inventing new substances by tweaking chemical formulas, as I already mentioned.

The point about criminalising young people was raised by the noble Baroness, Lady Hollins, again from her deep experience in this area. I assure her and other noble Lords that there is no question of criminalising the users of psychoactive substances. As proposed by the expert panel, the Bill is focused on the trade in these substances: those who manufacture, import, distribute or sell new psychoactive substances. The Bill contains no offence in relation to simple possession—a point welcomed by the noble Baroness, Lady Meacher. As she suggested, for young people tempted to use new psychoactive substances our focus must be on prevention and, where necessary, treatment. I look forward in Committee to setting out in more detail the comments in that expert panel report on the work that will need to go hand in hand with education and health prevention available to people.

The noble Baroness, Lady Hollins, argued in favour of the Irish approach. The Bill is closely modelled on that approach. I will come back to that specific point about the Irish definition.

The impact on research was raised by the noble Baronesses, Lady Meacher and Lady Hollins, the noble Lord, Lord Kirkwood, and my noble friend Lady Browning. A number of noble Lords sought reassurance about the impact of the Bill on legitimate research. I can indeed offer such reassurance. Research that does not involve the human consumption of a psychoactive substance would not be caught by the provisions of the Bill. Where research has reached the stage of clinical human trials, Schedule 1 to the Bill exempts investigational medicinal products from the scope of a psychoactive substance. This includes active substances being used in such trials. If further latitude for research were needed, the regulation-making power in Clause 10 enables us to exclude specified activities from the ambit of the offences.

The noble Lord, Lord Rosser, raised the issue of keeping the list of exempted substances under review. He asked about the process for ensuring that the list of exempted substances in Schedule 1 is kept up to date. We believe that the list will be relatively stable. Indeed, Ireland has not needed to amend its equivalent list in the five year since its legislation was enacted. I should add that we are not legislating here for a regulatory regime for new psychoactive substances; there is no provision in the Bill to enable the licensing of so-called low-harm substances, and the regulation-making power in Clause 3 is not designed for that purpose.

The noble Lord, Lord Rosser, and my noble friend Lord Farmer asked about the implementation of the Bill. We are working with the police, the National Crime Agency and the Border Force on implementation, including the development of appropriate guidance, and we will extend those discussions to the Local Government Association—another organisation that is actually being supportive of the Government’s approach here. We are also ready to work with other bodies, such as the Association of Convenience Stores, to provide bespoke guidance for their members. A very good point was made about what we are doing to engage with countries that lead in supplying these things, such as India and China. I do not have an answer to that, but I shall write to noble Lords about that in further correspondence.

I mentioned the cross-European approach. The noble Earl, Lord Sandwich, asked whether we could be more specific about when the ACMD is due to report. NICE and the Medicines and Healthcare Products Regulatory Agency have published advice to clinicians on how to help people to withdraw from medicines to which they are addicted. Public Health England has produced advice to commissioners on how to assess the need in their area for specialist services to help people to withdraw from medicines to which they are addicted.

I am conscious that there are a number of issues that I have not had time properly to address here, and I shall be very happy to write a follow-up letter to begin a discussion with colleagues, and perhaps to arrange, ahead of Committee, meetings between interested Peers and some of the experts from whom we have taken our opinion. I am very happy to give an undertaking to do that. With those assurances—