Prisons (Substance Testing) Bill

Lord Thomas of Gresford Excerpts

2nd reading
Friday 16th April 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, I add my own tribute to those already given to Dame Cheryl Gillan both for her commitment to the work and success of the choir—I have been a member for many years—and for her commitment to Wales as Secretary of State. The noble Lord, Lord Cormack, pointed out only a moment ago that she was a person who put country, constituency and party in that order, and she demonstrated that as Secretary of State. I also congratulate the noble Baroness, Lady Pidding, on her clear exposition of this Bill.

However, I have some concerns. In short, the main thrust of this Bill is compulsorily to take samples from prisoners for the purpose of scientific research. If prisoners refuse to co-operate, they commit an offence against the Prison Rules for refusing to obey a lawful order. Article 8 of the European Convention on Human Rights says that:

“Everyone has the right to respect for his private … life … There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”


This Bill is concerned not with the detection of crime but with the gathering of information on an anonymised basis. It is not a criminal offence under this Bill to have substances in the blood, but it would be a crime simply to refuse to give the sample.

This Bill will be tested to determine whether it is in breach of Article 8. Because it is a Private Member’s Bill, it does not require certification by the Minister. The taking of a blood and saliva sample against the subject’s will constitutes a compulsory medical procedure which, even if it is of minor importance, must consequently be considered as an interference with his right to privacy; that is the case of Jalloh v Germany in the European Court of Human Rights. In Caruana v Malta, the court considered that the taking of a buccal swab was not a priori prohibited in order to obtain evidence relating to the commission of a crime in which the subject of the test was not the offender but a relevant witness. Taking a sample to prove a criminal offence is one thing; to take a sample for research is another.

I must make it clear that, like the noble Lord, Lord Farmer, I am very concerned about the existence of substances circulating in prisons. I join with the noble Baroness, Lady Pidding, in condemning the scourge of drugs in prison. A prisoner from Blaenau Ffestiniog died from smoking spice in Berwyn prison in March 2018; I have spoken of this before—it is Britain’s largest prison and the second largest in Europe. The coroner said that he was concerned about the continuing accessibility of drugs to inmates at that institution and that there was a sense of dread in his office over the number of deaths they would have to deal with. There is recent anecdotal evidence that all sorts of substances circulate through there. Visitors to the prison have been convicted: there was one case in November 2018 for bringing in a book soaked in spice, and another in October 2020 for bringing in letters similarly treated—a practice to which the right reverend Prelate the Bishop of Gloucester has referred. Every effort should be made to prevent the smuggling of drugs and other substances into prisons.

However, there is a solution in hand. A trial scheme was announced in February, to be operated in 12 prisons in north-east England, Yorkshire and Humberside, whose findings will help the Prison Service to target anti-drugs measures. The monitoring of wastewater for traces of drugs has been pioneered in Australia. Sewage monitoring is regularly carried out in Britain to monitor the spread of viruses, including Covid-19. I am sure that the noble Lord, Lord Ramsbotham, would approve of this approach. The Prisons Minister, Lucy Frazer QC, told the Daily Telegraph in February:

“Right across the estate, we’re increasingly using technology to help rehabilitate offenders and to prevent drugs and phones from entering prisons. This pilot will help monitor drug prevalence in prisons, detect new and emerging psychoactive substances and ultimately contribute to reducing crime behind bars.”


Perhaps the Minister can tell us how this trial is proceeding. Clearly, it is intended to answer the main purpose of this Bill—prevalence testing—without any breach of Article 8.

I have other questions about the Bill. Are random tests proposed, as opposed to targeted tests? At what point are the tests anonymised? The Explanatory Notes say that a purpose is to ensure the prisoner can have medical treatment, which does not suggest anonymity. The Bill says that any substances can be tested for; how is that limited? Finally, as my noble friend Lord German asked, what is the purpose of the tests? Is it to criminalise other substances if found? It does not seem to me that the suggestion that the Bill is proposed in order to prevent delays in criminalising is a very good one.