Psychoactive Substances Bill [HL]

Lord Rosser Excerpts

Tuesday 23rd June 2015 Lords Chamber

[Baroness Meacher]

I wonder if it might help the Committee if the noble Lord withdrew Amendment 115 simply so that we can debate the need for a review of the Misuse of Drugs Act without setting it in the context of a delay to the psychoactive substances ban.

[Lord Rosser (Lab)]

I acknowledge the strength of feeling of many noble Lords on this issue but I hope we can all accept that, whatever our view, we all have the interests and protection of young people in particular in the forefront of our minds when discussing this group of amendments and the Bill as a whole. That is not the prerogative of one particular point of view. The effect of this group of amendments—certainly its intention—is to put back the commencement of most of the Bill’s provisions for, in reality, probably at least 18 months after the Bill has been passed.

The proposals in the Bill for a blanket ban on new psychoactive substances have been supported by the New Psychoactive Substances Review Expert Panel, whose report was called for by one Liberal Democrat Minister and accepted by another. The ban has also been supported by a similar panel in Scotland, the Health and Social Care Committee of the National Assembly for Wales, the Commons Home Affairs Select Committee, the Local Government Association, the police and the two largest political groupings in this House, including the Opposition, at the recent general election. The Liberal Democrats said that they would clamp down on those who produce and sell unregulated chemical highs. That all these organisations, committees and parties reached their conclusion in either the face of all the evidence or the absence of any evidence—as has been implied—is unlikely.

We need to start to tackle the issue of legal highs now. The United Kingdom now has the second largest legal highs market in the world, beaten only by America. We are the top country in Europe for emerging new psychoactive substances. Over the past four years, hundreds of new internet sellers have been established in the UK, along with an estimated hundreds of specialist high street head shops. Beyond this, an unknown number of other stores, including late-night garages and takeaways, have started selling these products. In short, an entire industry became fully established under the previous coalition Government, selling and marketing dangerous drugs largely aimed at young people, many of whom would not otherwise have considered experimenting with drugs.

It also appears quite common in the legal highs market for legal high sellers to send out samples of new psychoactive substances to existing customers and use human beings as guinea pigs with no consideration of the consequences. The evidence also shows how far behind the market we currently are.

[Baroness Meacher]

I thank the noble Lord for giving way. He says that head shops have no consideration for their customers. In our experience, head shops are the one outlet that do have to have some concern about their customers because, if they kill them or if they finish up in hospital, they will not come back for more and head shops will not make profits, which is what they are there to do. That is the one reason why, unpleasant though head shops are—and they are—if they were properly licensed and controlled, they would be rather better than the alternative: the black market.

[Lord Rosser]

I think I actually said that it is quite common in the legal highs market for legal high sellers— and there is more than one way of selling it—to send out samples of new psychoactive substances to existing customers and literally use human beings as guinea pigs, with no consideration of the consequences. I do not think that implies that everybody is doing that; it is saying that it is not uncommon for that to be the situation.

The evidence also shows how far behind the market we currently are. Substances were being banned following parliamentary debate earlier this year, when it had been known that sellers were sending out to potential customers samples likely to be toxic three years previously.

I wish to quote the Home Affairs Select Committee report, to which I referred earlier. I realise that some have already challenged this statement but it is set out in the Home Affairs Select Committee report. The report states:

“England and Wales has almost the lowest recorded level of drug use in the adult population since measurement began in 1996. Individuals reporting use of any drug in the last year fell significantly from 11.1% in 1996 to 8.9% in 2011–12. There was also a substantial fall in the use of cannabis from 9.5% in 1996 to 6.9% in 2011–12”.

That does not mean there is not still a problem, but the area where things have been going in the wrong direction, as identified in the report of the expert panel, has been as a result of the emergence of new psychoactive substances. The explosion of new psychoactive substances in the last few years is a unique phenomenon which warrants specific legislation. Some 670,000 young people in the UK were thought to have experimented with new psychoactive substances by 2013, and this is leading to an increase in deaths. To my knowledge, no new psychoactive substance which has been referred to the Advisory Council on the Misuse of Drugs has been found to be safe.

We are not in agreement with this group of amendments, which will delay the introduction of key parts of this Bill, including the blanket ban, when the need for action to address the growing issue of new psychoactive substances, including through education, prevention and treatment, is now.

[Lord Richard]

My Lords, for the third time, I ask the same question: if the link between delaying the Bill and the part of the relevant amendment which calls for an independent inquiry is broken, does the Labour Party support an independent inquiry into the operation of the Misuse of Drugs Act?

[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.

--- Later in debate ---

[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.

[Lord Bates]

My Lords, first, I thank the noble Baroness, Lady Meacher, for giving us the opportunity to have this debate. In some senses, it is a rehearsal of our discussion following the Oral Question she asked in your Lordships’ House last week.

The Government’s position is that we have no plans to reschedule cannabis. There is clear scientific evidence that cannabis is a harmful drug which can damage people’s mental and physical health, and which can have a pernicious effect on communities.

Let me deal with a couple of the points that were raised in the debate. In responding to these amendments, I remind the Committee that cannabis is a controlled drug under the Misuse of Drugs Act 1971, and listed in Schedule 1 to the Misuse of Drugs Regulations 2001. The 1971 Act will continue to regulate the availability of controlled drugs, and Schedule 1 to the Bill specifically excludes drugs controlled under the 1971 Act.

To move herbal cannabis and cannabis resin to Schedule 2 to the 2001 regulations, and thereby enable their prescribing, would amount to a circumvention of the established evidence-based regulatory process that successive Governments have had in place to ensure that products made available in the UK as medicines are as safe and effective as possible. My noble friend Lord Ribeiro made the point about the importance of rigorous clinical trials.

--- Later in debate ---

[Lord Blencathra]

My Lords, I am sympathetic to the noble Baroness’s amendment. Of course, we need some monitoring information and we need information around effectiveness, but I am just not sure that the Home Office or a government department is the right body to produce such independent information. It may be, but I have my doubts.

My main concern about the noble Baroness’s amendment is the timescale. Having listened to the noble Lord, Lord Howarth, I am now very concerned about the timescale if the Government, or anyone else, attempted to report on the wide range of things he has suggested. I am not being facetious, but it struck me that compiling a report of the length that the noble Lord wants would probably end up taking longer than the new sexual abuse review by the distinguished New Zealand judge. I do not mean that as a facetious comment or to diminish the work she is doing.

The noble Lord, Lord Howarth, and many others in this Chamber have some experience in government. I think we know that if a government department were to produce a report within 12 months, it would have to be approved by the Cabinet at month 11. This is a territorial Bill and would need to go round all the territorial Governments in months 9 to 11 to be checked by them. It would need to go round the UK government departments in Whitehall, probably in month 8 or 9, to be amended by them, which means that the Minister in the Home Office, or wherever, would need the first draft in about month 6, which would mean that civil servants would start writing it in month 3.

I say to the Minister: if the Government have to produce a report, preparing one within 12 months of the Act would not be sensible. It would be impossible—no, it would not be impossible, but it would include only a fraction of the information that one would want. There may be merit in the Government producing a report, but not of the length that the noble Lord, Lord Howarth, has suggested and certainly not within the 12-month timescale.

[Lord Rosser]

We have an amendment in this group and it is not about post-legislative scrutiny. It calls for the Secretary of State to publish an annual report on new psychoactive substances and sets out some of the information that must be included in the report.

There is currently a real lack of data collected and published on new psychoactive substances and their impact. For example, the first indication of a new drug tends to come from a hospital admission. If this happens in the United Kingdom, the National Poisons Information Service is informed and it then advises the European Monitoring Centre for Drugs and Drugs Addiction. The EMCDDA tells the National Poisons Information Service of drugs detected elsewhere in Europe. However, the Home Office keeps its own lists, the main one being the forensic early warning system, and, to date, successive Ministers have been unable to explain the relationship between the EMCDDA list and the Home Office list, which suggests that data are not being collected and published in a consistent or helpful way. Similar problems arise with monitoring drug-related deaths and overdoses. No proper data are collected on drug deaths as the data we have rely on examining countless records, which is why they are often incomplete and take years to publish.

There is a significant problem, too, with hospital admissions. The National Poisons Information Service collects new drugs but does not collect data on all drug- related overdoes. We do not know how many hospital admissions result from taking these new substances. Nor do we know in how many cases new psychoactive substances were a factor for those needing to access mental health services. Anecdotal evidence suggests that legal highs are a major factor, especially for adolescent mental health services.

In their response to the expert panel, the Government accepted the importance of information on new psychoactive substances and that it should be shared systematically at both a local and national level in a timely manner. However, the Government did not appear to accept the current inadequacies in the information, including those to which I have referred.

The expert panel said that, with the rise in the availability of NPSs, coupled with possibilities for NPS market development via the internet, the UK drug scene had become increasingly complex and fractured, and that a number of information issues arose from this. These included,

“the difficulty for any one agency to keep to keep abreast of all the new developments … the acknowledgement that the Misuse of Drugs Act 1971 needs to be supplemented by other legislation has meant that more professional networks require information including trading standards … the current time lags involved between data collection and publication of data obtained by current networks mean these systems cannot be employed in the service of providing more timely early-warning-type information; and … the need to collect, analyse and distribute information in a more systematic and timely fashion to help inform policy and practice at both a national and local level”.

Frankly, the Government’s response did not address all these issues since there seems to be a view that the forensic early warning system’s annual report can fit the bill. In its recommendations, the expert panel says:

“There is a need to establish prevalence, evidence and harms associated with NPS”.

It suggests that we should:

“Develop detection and data collection tools across criminal justice and health services, and other relevant settings, for example, schools and universities”.

A recommendation refers to developing,

“internet tools to monitor internet activity around NPS”,

and to the need to:

“Record health and social harms related to NPS by utilising professional networks and other early warning systems … understand local markets, including through headshops, retail outlets, prisons and local police assessment”.

On enhancing the share of information on NPSs, the panel said:

“Sharing information at both local and national levels is essential in helping to achieve a reduction in the demand and supply of drugs and in promoting comprehensive and effective interventions”.

It is fairly clear from the report of the expert panel that it does not think enough is currently being done in the area of the provision of information. The purpose of this amendment, as I said at the beginning, is to provide for the Secretary of State to publish an annual report on new psychoactive substances. The amendment sets out, in not quite so extensive a list as that of my noble friend Lord Howarth of Newport, some of the information that should be included in that report.

I hope the Minister will reflect further on this issue—the importance of information on NPSs—and the adequacy of the current information and the systems and methods by which it is provided. Our amendment gives the Minister the opportunity to do just that and I hope it is an opportunity she will take.

[Lord Paddick]

My Lords, I waited until this moment to speak because it seemed unfair to comment on the amendment in the name of the noble Lord, Lord Rosser, without his having spoken to it first. I have some sympathy with what the Labour Party is proposing, but I prefer Amendments 4 and 6 proposed by the noble Baroness, Lady Meacher, for the very reason that she articulated. The market for new psychoactive substances and that for other substances covered by the Misuse of Drugs Act cannot be treated as separate. The whole reason for the existence of new psychoactive substances is the controlling of other drugs. There would be no need for people to develop so-called legal highs if they could get the high legally from controlled drugs. It is essential that the annual report includes exactly what the noble Baroness proposes: an assessment of the impact on health and the social harms brought about by the Misuse of Drugs Act and this Bill.

The noble Lord, Lord Howarth of Newport, gave a long list of things that could be included in the report. If everything he suggested was included, it might not only put the Government off producing the report but put me off reading it or trying to wade through it. I agree with the noble and learned Lord, Lord Mackay of Clashfern, that post-legislative scrutiny of a Bill such as this by a Joint Committee of both Houses would be appropriate, but it should not mean that there should not also be an annual report, because things are changing so quickly. We have heard from other noble Lords about how different drugs come into mode and out again. We therefore need an annual assessment of whether the legislation is still fit for purpose.

--- Later in debate ---

As I have indicated, it is now an established practice for all new primary legislation to be subject to post-legislative review. Given that such reviews are now routine, I hope that perhaps the noble Baroness, Lady Meacher, and the noble Lords, Lord Tunnicliffe and Lord Howarth, will accept that we do not need to provide for this in the Bill. Even if a case could be made for such a provision, I would have strong reservations about the necessity for an ongoing requirement to publish an annual report, because of the problems that I have already stated. I will happily share with noble Lords our plans for the review of this legislation once they are further developed. Of course, I am more than happy to reflect on the debate between now and Report. With that, I hope the noble Baroness will be content to withdraw her amendment.

[Lord Rosser]

Before the noble Baroness tells us what she wishes to do with her amendment, I want to say that I do not think that the issues raised in Amendment 105 will need three years. They are about the collection of basic data, where we appear to have a distinct weakness, which was identified by the expert panel and was the subject of recommendations by that panel. Why do we need to wait so long to address an issue of concern to the expert panel; that is, the lack of data?

[Baroness Chisholm of Owlpen]

The noble Lord is right: I was rather remiss in not saying that I was sympathetic to his views on this issue, and I apologise. We will certainly consider it between now and Report.

--- Later in debate ---

[Lord Bates]

That is a good point. There are a number of ways. Perhaps I may make the point that I have been trying to set out the terms so that a future reader of the Official Report may actually be able to deduce—I will be careful here—what the Government intended when they set out the definition in this particular way. The noble Lord’s intervention is entirely appropriate and I do have an answer which I will give to him, but I want to make sure that we do not lose the flow of what underlies this, which is the rationale behind the definition.

There are a number of ways, and these include data based on a human user’s experience, argument by analogy and in vitro neurochemical profiling. Working with the Centre for Applied Science and Technology at the Home Office, we will identify and build the capability in the UK to meet the demand for this new forensic requirement, as well as working with the Office of the Forensic Science Regulator to ensure that the high standard of quality that forensic evidence meets is maintained.

The Home Secretary has written to the Advisory Council on the Misuse of Drugs seeking its views on how we can strengthen the UK’s forensic capacity and capability to support the implementation of the legislation. We remain ready to consider carefully any recommendations the council may have about other aspects of the Bill. We will continue with the forensic early warning system, which has enabled forensic providers more easily to identify new psychoactive substances coming on to the UK market through the provision of reference standards and establishing a new psychoactive substances community. I am sure that that has entirely answered the noble Lord’s point.

[Lord Rosser]

It seems to me that this is a fairly crucial part of the Bill because the argument, quite rightly under the present procedure, is the length of time it takes to ban a psychoactive substance. I have listened with interest to what the Minister has said, and I suspect he has listened with interest to what he has been reading out—I am not trying to be rude; I mean that. But what is really needed is an indication of how long it is going to take to ban one of these substances as compared with the current procedure. What the Minister has said does not help me form a view on how long it will take to ban such a substance in the future, compared with the current situation, and that surely is the key aim of the Bill: being able to ban these substances with a degree of rapidity.

[Lord Bates]

That is so, and many a true word is often spoken in jest—such as when the noble Lord talked about my going through the answer which has been provided. I accept that the key point here, which the noble Lord, Lord Harris, was getting at, is to look at how a police officer would actually start the process of gauging whether a person was being disorderly, search them in the belief that they are in the possession of a new psychoactive substance, and then, if they find something, how it will be determined whether that substance is banned. I am going through the process whereby the substance will have to be sent to the lab, where it will be tested for certain chemical compounds which might be on a list or subject to a temporary banning order.

What we are saying is that a different approach will be taken in the future. We are setting up a very broad definition in order to avoid the constant race to hybrids and changes which officers are facing on the street. We arrive at a definition which is set on one day, but the substance has miraculously morphed into something else the next day and gets through the loophole. What we are dealing with here is a definition of the effect which a substance has or is intended to have on the person who is in receipt of it.

If I make a little more progress on my brief, the position might become clearer. The nature of this point is our experience of the loophole, which I have covered. There are any number of natural products, which takes me to Amendment 9. The amendment seeks to import the definition of a psychoactive substance used by the Republic of Ireland in its Criminal Justice (Psychoactive Substances) Act 2010. Indeed, we used the same definition as a starting point. As the Committee might imagine, during the drafting of the Bill we discussed the definition with counterparts in Ireland, and in Australia and New Zealand, and with scientific and law enforcement experts. Following this advice, we have retained the core elements of the Irish definition, but have sought to refine it to make it more concise.