Psychoactive Substances Bill [HL]

Lord Patel of Bradford Excerpts

Tuesday 9th June 2015 Lords Chamber

[Lord Patel of Bradford (Lab)]

My Lords, I heed the warnings from the noble Baroness, Lady Browning, about chocolates and flowers, but given that this is a Home Office Bill and given the Home Secretary’s liking for shoes—although it has nothing to do with the legislation—shoes might be one way forward.

I am very interested in the Bill, having worked for a considerable number of years in the field of substance misuse and having been a member of the Advisory Council on the Misuse of Drugs. I certainly agree with many of the points that noble Lords have already raised, particularly the noble Lord, Lord Paddick, and the noble Baroness, Lady Hollins. I agree with the Government that the continuing development and use of so-called new psychoactive substances, or NPSs, as they are now known, is a matter for serious concern.

I welcome the Government’s interest in trying to prevent these substances causing harm, particularly if we are to prevent deaths amongst young people who are otherwise law-abiding citizens, and who perhaps understandably are attracted to new experiences at a time in their lives when exploration and risk-taking are normal. I also appreciate the Government’s desire to control and minimise the harms caused by the production and importation of these harmful new substances from “producer” countries such as China, which appear to be the source of many of the “psychoactive powders” that are currently found in the UK. Similarly, I understand the wish to control the supply of potentially harmful substances from so-called head shops and professional drug dealers in the UK.

Having said all that, I have a number of concerns about the Bill in its current form: that it may not only fail to achieve those aims but result in greater harms. For any avoidance of doubt, I do not say that lightly, or simply to make a political point, but rather to assist in making sure that this legislation is workable and that it gets through. I have been looking at the scientific evidence that is currently available, and I believe that there are some serious fault lines within the Bill as drafted. I will be looking for assurance from the Minister with respect to how the Government are addressing the scientific evidence, particularly the advice from the Advisory Council on the Misuse of Drugs and other concerned bodies, so that we can ensure that no serious unintended consequences happen as a result of the Bill.

Notwithstanding what the Minister said about the expert panel, I understand that the Home Office did not consult with the ACMD on the drafting of the Bill. Given the advisory council’s obvious expertise and statutory standing with respect to the Misuse of Drugs Act, can the Minister say why that was the case? Have views been sought from other government departments? Again, I come back to what the noble Lord, Lord Pannick, said about health: this has to be health related. Have we taken advice from the Department of Health? What are its views, and what is the view of Public Health England on the implementation of this Bill? Can the Minister also say why there has not been much wider consultation on this legislation, given that it is such a complex area with a wide range of potential impacts on a variety of stakeholders? That point was also raised by two fairly influential agencies, Transform and Release.

One of the biggest issues that I have to question is the rather different procedural approach in the Bill, whereby the precautionary principle is being employed—that is, this legislation attempts to ban everything on the basis that it is better to be safe than sorry. That may sound sensible to some but it flies in the face of our long-standing approach to drug laws in this country, which is based on the principle of reducing harm where it is known to exist, and that, I would argue, is much more focused and less ambiguous. However, I will leave the legal arguments of procedure to other noble Lords who are more qualified than I am, while I briefly outline some of the areas where I seek assurances.

First, as I understand it, one of the principal drivers of this legislation is to halt the proliferation of head shops, which are viewed as a main source of supply for many NPSs in the UK. As noble Lords are aware, and as has already been mentioned, a similar ban on NPSs with this aim was introduced in Ireland five years ago. However, my understanding is that the Irish experience has shown a rise in use as a result of the ban on head shops because the market has been driven underground. We know that use of NPSs among Irish youths has increased since the 2010 ban—with reported lifetime use going from 16% in 2011 to 22% in 2014—with reports of a shift to the street and online markets. What can the Minister add to that latest evidence? My noble friend Lord Rosser raised that issue, as have others. Do we have up-to-date evidence of Ireland’s experience in this area?

This kind of blanket ban can not only result in an increase in NPS use but lead to the transfer to more dangerous substances, as those seeking them elsewhere move into the arms of drug dealers, where they may be exposed to the sale of illegal drugs such as heroin. Some noble Lords have said that if people cannot go to a head shop and the substance is not legal then they will not go elsewhere, but they will. My experience of working with many, many young people with drug problems is that they will go elsewhere to seek a substance and that they will be driven into the arms of drug dealers.

The European Monitoring Centre for Drugs and Drug Addiction has warned that a blanket ban will push NPSs into a “grey marketplace”. By that, it means parts of the internet that cannot be controlled or policed—the so-called dark net. So a country-specific ban on NPSs will most likely fail to have a great impact on new substances and may well expose people to other, unknown harms. Can the Minister assure me that the Bill will have a real impact on the supply chain and on those making money through the nefarious activities of creating and distributing harmful substances for money and not simply push a new generation into a more dangerous environment where the sales of these and other drugs thrive?

I also have some concerns about the scope of the Bill. As it stands, the Bill covers all psychoactive substances. This position goes much further than the recommendation in the report of the expert panel on NPSs that substances which are not harmful or which have minimal harm are not drawn into the Bill. I realise of course that the Government propose a list of exemptions in the Bill for things such as food supplements, controlled drugs and so on, but I have considerable reservations about whether this will be effective. Again, I seek reassurance from the Minister on this point.

Not all psychoactive substances are harmful and indeed some, such as those used in eastern medicines for centuries, may be beneficial. Many homeopathic and herbal remedies and some products taken to aid well-being could be psychoactive yet are not on limited approved lists. Examples are Ginkgo biloba, which can be bought off the internet, and products containing guarana, a mild stimulant contained in many drinks, including some produced by world-leading companies.

The problem is that the Bill makes no distinction between very dangerous substances and those of little or no harm. In effect, this could mean that the principle that the seriousness of the punishment should relate to the seriousness of the offence may be significantly altered, and not in a beneficial way.

I am very aware that experts do not yet agree on the best way to define what is psychoactive. This could make implementation of the Bill very difficult and potentially open to legal challenge. Perhaps most worryingly, the Bill as drafted could create a situation where we are criminalising and damaging the lives of otherwise law-abiding young people. For example, the Bill could create a situation where many young adults would face severe importation and supply offences if they bought an NPS on the internet, perhaps even unaware that they are being shipped from abroad. My understanding is that, if they shared them with their friends, the weight of the law as written in the Bill could be quite disproportionate to the offence. Can the Minister reassure us that a proportionate response will be taken?

If I might, I will just digress for a second. This is undoubtedly a very important area of drug policy and legislation and we are right to spend parliamentary time on it, but I would strongly argue that the significant harms associated with the abuse of and addiction to prescribed medication deserves as much time, if not more, to be debated and addressed. Recently, I discussed with the noble Earl, Lord Sandwich, and others the idea of reconstituting an all-party group on prescribed medications. I will not steal the noble Earl’s thunder, as I know that he will speak about this in his contribution, but suffice to say that many will be aware of the very serious concerns that have been voiced on the issue of prescribed medication. This concern was most recently raised at the Maudsley debate, where it was suggested that prescribed medications may be the third-leading cause of death after heart disease and cancer. That has to be viewed in the context of deaths from legal NPSs.

In addition to tranquilisers, other types of psychoactive medication can lead to dependence, including anti-depressants, stimulants, anti-psychotics and painkillers. Withdrawal from these drugs can result in severe long-term symptoms and, in some cases, long-term or even permanent neurological injury. There were over 57 million prescriptions for anti-depressants in England alone in 2014, a rise of over 7% since 2013 and over 500% since 1992. In total, around 80 million prescriptions for psychiatric drugs were issued in 2014, often for mild and moderate conditions where other non drug-related interventions may have been more appropriate. This increase in prescription rates has led to a significant rise in demand for the services of withdrawal support charities, which have only about 5% coverage. I am not saying that many people do not benefit from these drugs, but too many are prescribed long term without support, guidance and advice, and let me tell you that the resultant harm is, in my experience, extreme. It is certainly an area that we need to look at very carefully.

Finally, my noble friend Lord Rosser spoke about NPSs being an issue in prisons. If my memory serves me, a report last year on pain management in prisons gave a snapshot study of two relatively small prisons with a population of around 1,600 people. In one month, they were prescribed 350,000 analgesic tablets, and that does not include paracetamol, Nurofen, pregabalin or tramadol. Prescribed drugs are a major issue.

I will be following this debate and the passage of the Bill with interest. I strongly suspect that I will not be alone in calling for the Bill to be improved so that it is evidence based, proportionate in its aims and can achieve what it was intended to achieve—that is, to control the importation and supply of new harmful psychoactive substances by professional drug suppliers and dealers, who are set to make large amounts of money from this trade.

--- Later in debate ---

[Lord Bates]

There is some of that in the impact statement, although I accept that it may not be as much as noble Lords would like. However, I am very happy to see whether we can go back and see what extra we can produce in answer to that very specific question. I shall write or provide further comment in Committee. But in the light of those remarks and those commitments—

[Lord Patel of Bradford]

I have just one question about the Department of Health and Public Health England. Many noble Lords have said that they would prefer to see this legislation under the health remit. I just cannot see where Public Health England and the Department of Health have been engaged or involved in taking this Bill forward, and it would be useful to have a view on that.