Psychoactive Substances Bill [HL]

Lord Norton of Louth Excerpts

Tuesday 30th June 2015 Lords Chamber

Moved by

[Lord Norton of Louth]

15: Clause 3, page 2, line 9, leave out “or vary”

[Lord Norton of Louth (Con)]

My Lords, Clause 3(2)(a) permits the Secretary of State by regulation to amend Schedule 1 in order to add or vary any description of substance, while Clause 3(2)(b) permits the Secretary of State by regulation to remove any description of substance added under paragraph (a). I appreciate that any regulation made under this provision has to be by statutory instrument, subject to affirmative resolution. I appreciate that paragraph (b), which, on the face of it, appears to be a Henry VIII power, is limited by the fact that the Minister can seek to utilise it only to remove a substance that the Minister has added under paragraph (a). A Minister cannot seek to remove a substance that is exempted under the measure as enacted.

However, I have a concern about the provision under paragraph (a) to vary the description of any substance. This concern is shared by the Constitution Committee of your Lordships’ House, and I declare an interest as a member of that committee. In its report published at the beginning of last week, the committee draws attention to the fact that the power to vary any description of substance could presumably be employed to narrow the description of such substances, thereby expanding the range of substances brought within the ambit of the Bill’s provisions.

The power to seek to vary the description of substance is subject to it being exercised by a statutory instrument but, given the breadth of the power and the absence of any definition of what is meant by varying a description of substance, that may be deemed an inadequate safeguard. Exercising the power by statutory instrument may be necessary but it may not be sufficient.

This is compounded by the fact that, as the Constitution Committee notes, the power to add, remove or vary the description of substances is not constrained by any explicit statement of the purpose or purposes for which the power may be exercised. Any constraint would have to be inferred from the scheme of the Bill but that may be difficult given that, as the committee notes,

“the Bill adopts an ostensibly neutral conception of what should constitute a (non-exempted) psychoactive substance”.

There is no notion of harm embodied explicitly in the Bill, so one cannot adumbrate clearly the range of substances upon which its provisions have effect. Given the wide power conferred by paragraph (a) to vary any description of substance, some amendment to the clause to make clear the meaning of vary would seem appropriate, along with a statement of the purpose or purposes for which the power may be exercised; in short, making it clear what it is and when it would be appropriate to use it.

If the Minister were to indicate that the Government would be prepared to consider amending the Bill along those lines, that would allay concerns about the broad and undefined powers given by this clause. Without such an assurance, the prudent course would be to remove altogether the provision to vary any description of substance. That would leave the Minister with the capacity to add by regulation and to remove by regulation anything added. That would offer at least some clarity in a way that we do not have at the moment. One either defines what is meant by varying a description of substance or one removes the term from the Bill. The amendment, by providing for removal, is designed to concentrate the Minister’s mind. I beg to move.

[Baroness Hamwee (LD)]

My Lords, my noble friend and I have Amendments 20, 21, 47 and 48 in this group. First, I welcome the introduction of this issue in Committee by the noble Lord, Lord Norton of Louth, which, as he said, was considered by the Constitution Committee. We are lucky to have committees which manage to just about keep ahead of the game in looking at legislation and helping the rest of the House in raising such issues. It is a very important point.

My amendments are in two pairs and both regard the regulations. One of each pair provides that when the Secretary of State consults before making regulations, as well as consulting those whom she considers to be appropriate, she should specifically consult the Advisory Council on the Misuse of Drugs both with regard to exempted substances under Clause 3 and excepting certain actions in regard to offences under Clause 10. The second amendment in each pair provides that she must also make a report to Parliament on the consultation. I have added that assuming that that is what would happen but I seek the Minister’s confirmation.

A number of people commenting on this Bill have said that the ACMD seems to have been sidelined when it should be upfront and the centre of what we are doing. I hope that this small point—it is not a small issue, but a small insertion—is something that the Minister and the Secretary of State would be glad to confirm as proper to be in the Bill.

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[Lord Norton of Louth]

My Lords, I am grateful to my noble friend the Minister. I shall look forward to further discussions with him, and I know the Constitution Committee will be very interested in his response to its report.

I listened with great interest to what my noble friend said. On defining the term “to vary” he offered a description but not necessarily a compelling argument for why a description should not be in the Bill. I appreciate that the power to vary will be subject to the affirmative resolution, but that places a burden on the House to establish criteria for assessment when the instrument is brought forward, whereas it may provide better discipline for the criteria to be established in the Bill. We can say no when the instrument is brought forward, but there may be a case for it not to be brought forward in the first place to make it clear to the Government what should and should not be permissible. So I am not necessarily persuaded that the Government should be given the essentially unrestricted power in Clause 3. One can have a little too much flexibility.

However, I look forward to discussing this further with my noble friend and, in the mean time, beg leave to withdraw the amendment.

Amendment 15 withdrawn.

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Moved by

[Lord Norton of Louth]

29: Schedule 1, page 34, leave out lines 25 to 29

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[Lord Norton of Louth]

My Lords, my amendment would remove alcohol from the list of exempted substances in Schedule 1. The purpose of tabling the amendment is to enable the Minister to do that which he did not have time to do at Second Reading: to provide an intellectual justification for the exclusion of alcohol from the provisions of the Bill.

Alcohol has the effects listed in Clause 2(2) and as developed by the Minister in responding in Committee on Amendment 7. Why, then, is it an exempted substance? The logic of the Bill is, on the face of it, unclear. It seeks to prohibit psychoactive substances that are seen to be harmful, but it then exempts the substance that is the most harmful of all in human, social and economic terms. Alcohol misuse kills, it rips families apart, it puts strain on public services—the police and the NHS—and it has enormous economic consequences for public services and for employers in working days lost. There are at least 5,000 alcohol-related deaths a year. If one includes deaths where alcohol is causally implicated, the figure rises to some 20,000, a point made by the noble Baroness, Lady Hollins, at Second Reading.

Alcohol abuse remains the leading risk factor in deaths among men and women aged 15 to 49 in the United Kingdom. In 2012-13, there were more than 1 million hospital admissions related to alcohol consumption, and almost 300,000 were wholly attributable to alcohol consumption or classed as alcohol specific. Alcohol abuse not only harms those who drink but impacts on society as well. Heavy drinking can not only damage one’s physical and mental health but lead to assaults and leave one vulnerable to assault. There were nearly 10,000 casualties of drink-driving the UK in 2012, including 230 killed. In almost half of all violent incidents, the victim believed that the offender was under the influence of alcohol. Perhaps most remarkable of all, according to Alcohol Concern, the NHS estimates that some 9% of men and 4% of women in the UK show signs of alcohol dependence; that the cost of alcohol misuse in England is an estimated £21 billion in healthcare, crime and lost productivity; that the cost to the hard-pressed NHS is £3.5 billion; and that the cost in terms of crime is £11 billion. It is difficult to comprehend the sheer scale of the social and economic cost.

Why do we continue to tolerate heavy drinking and many city centres being awash with drunken youths on Saturday evenings, and why are we willing to excuse clearly inebriated individuals in all sorts of social settings but do not tolerate those who take other psychoactive substances? Why is one type of misuse apparently culturally acceptable, or at least tolerated, but not the other? Should we not adopt the same approach to all psychoactive substances that can produce serious personal, social and economic harm? Why do we seek to ban the manufacture and distribution of one but not the other? My noble friend may say that the answer is purely practical: that we cannot ban the production and sale of alcohol because such a ban would be unenforceable; we would be emulating the USA of the 1920s. If that is the case, let us have that on the record. Is the use of legal highs on such a scale that a ban on their production and distribution can be enforced, or, at least, is that the justification? If so, what is the evidence that such a prohibition is enforceable? What consideration has been given to the alternatives?

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[Lord Bates]

The noble Lord is right. We will go back and look again at those Written Answers. We are alert to the risk of powdered alcohol and are actively looking at how best to meet this challenge. However, we are not persuaded by this amendment. We are alert to the problem and are looking at it. I will be happy to meet with the noble Lord, together with officials, if he has new evidence to share with us about how the problem of powdered alcohol is being tackled in other countries and if and how it is being used in this country.

[Lord Norton of Louth]

My Lords, I am grateful to everyone who has spoken. It has been a useful discussion for getting certain matters on the record. We may have done a public service by finding out what the Opposition’s policy is on this matter.

The Minister’s response—and, indeed, my noble friend Lord Blencathra, to some extent—made my case for me. The point that we have established is that there is no principled case for the exemption. The Minister basically said that it is difficult to ban it, that we are where we are and that it brings in a lot of money to the Treasury. That has to be set against the damage that alcohol misuse causes, as I have detailed and, indeed, as my noble friend confirmed in the data that he placed before us. My noble friends Lord Blencathra and the Minister made the point that I was making—that in relation to alcohol there is an approach of regulate and educate—so why are we not being consistent? That is the issue that I was raising and it is important that it is borne in mind. If we are going to proceed, we have to be clear about why we are doing this. Where is the consistency? What is the intellectual case? As we have heard—as my noble friend confirmed—there is not one.

I am sure my noble friend will be relieved to know that I do not intend to press the amendment, nor is it something that would lend itself to come back to on Report. I am grateful to the noble Lord, Lord Brooke, who has raised an important issue which is worth pursuing. I do not intend to pursue the broad issue that I have raised, but I hope that throughout our discussions this will remain the elephant in the room. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.