Policing and Crime Bill (Fourth sitting)
Lyn Brown Excerpts(8 years, 2 months ago)
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The Chair
I remind the Committee that with this we are discussing the following:
Amendment 181, in schedule 1, page 122, line 10, at end insert—
“with the cost of obtaining such information to be met by the police and crime commissioner.”.
This amendment would require the police and crime commissioner to pay the costs the fire and rescue authority incurs in providing the police and crime commissioner with the information needed to prepare a proposal to transfer governance to the police and crime commissioner.
Amendment 172, in schedule 1, page 122, line 22, leave out sub-paragraph (a) and insert—
“(a) consult each relevant fire and rescue authority,
(ab) any local authority all or part of whose area forms part of the fire and rescue authority area, and
(ac) the relevant workforces.”.
This amendment will make it a statutory obligation for the local authority Fire and Rescue Authority, and relevant workforces, to be consulted before being taken over by a PCC.
Amendment 170, in schedule 1, page 122, line 25, leave out “make arrangements to seek the views of” and insert “consult comprehensively with”.
This amendment would require a police and crime commissioner to consult local residents about the proposal to transfer governance of the fire and rescue service to the police and crime commissioner.
Amendment 171, in schedule 1, page 122, line 26, leave out “commissioner’s police” and insert “fire and rescue authority”.
This amendment would mean that police and crime commissioners need only seek the views of people living in the affected fire and rescue authority rather than across the whole of the police force area.
Amendment 180, in schedule 1, page 122, line 43, after “proposal”, insert
“from an independent panel of experts chosen by the relevant police and crime commissioner and local authorities,”.
This amendment would guarantee the independence of panels tasked with assessing takeover proposals submitted by a PCC.
Amendment 173, in schedule 1, page 123, line 17, at end insert—
“(4) An order under section 4A, where modified or not by the Secretary of State, may only be made with the consent of the relevant local authority, relevant fire and rescue authority and relevant police and crime commissioner.”.
This amendment makes it a statutory requirement for the Secretary of State to get the consent of the PCC, Fire and Rescue Authority, and local authority, before making an order.
Amendment 177, in schedule 1, page 123, line 17, at end insert—
“(4) Before submitting a section 4A proposal to the Secretary of State, a relevant police and crime commissioner must make arrangements to hold a referendum.
(5) The persons entitled to vote in the referendum are those who, on the day of the referendum—
(a) would be entitled to vote as electors at an election for the relevant police and crime commissioner, and
(b) are registered in the register of local government electors at an address that is within a relevant fire authority area.
(6) The referendum is to be held on—
(a) a suitable date corresponding to the regular electoral cycle, or
(b) if there are no elections scheduled within the next 365 days, such other date as the Secretary of State may specify by order.
(7) The police and crime commissioner must inform the Secretary of State of the result of the referendum.
(8) The Secretary of State may only grant an order if—
(a) the proposal was approved by a majority of persons voting in the referendum, and
(b) the turnout for the referendum is greater than 25 per cent of those eligible to vote.
(9) A police and crime commissioner may not hold another referendum within the period of ten years.”.
This amendment would ensure that a PCC can only take over a Fire and Rescue Service with the approval of local people.
Amendment 178, in schedule 1, page 123, line 17, at end insert—
“(4) An order under section 4A, where modified or not by the Secretary of State, may only be made with either: consent of the relevant local authority and relevant fire and rescue authority, or a majority vote by local people through referendum.”.
This amendment would ensure that a PCC can only take over a Fire and Rescue Service with the approval of local people or their local representatives.
Lyn Brown (West Ham) (Lab)
I hope we all had a jolly good lunch—well, perhaps not too good a lunch.
Amendment 181 solves two problems: it clears up the ambiguity around who will pay for the costs incurred in putting together proposals, and it helps to mitigate the potential for hostile takeovers by the police and crime commissioner where the fire and rescue authorities do not want to be taken over but are bullied into submission by spiralling costs. If the Minister wants to ensure that PCC takeovers are in the best interests of the fire and rescue service and improving public services, I am sure he will be in full and happy accord with the amendment.
Amendments 170, 171 and 172 deal with the consultation process: amendment 170 states that it must be a full consultation; amendment 171 restricts the scope of the consultation to local residents who are served by the fire and rescue authority; and amendment 172 makes workers and fire and rescue authorities statutory consultees. They would ensure that the consultation process is comprehensive and does not ignore the views of local people, professionals working in the emergency services or the current fire and rescue authority.
The consultation exercise that preceded the Bill was a bit of a sham. It was packed full of leading questions and did not show any real interest in the views of experts and specialists on the substance of the proposals. It was a bit of an insult, if I may say so, to their intelligence. I can see some scepticism on Government Members’ faces, so I will take them through this. Question 1 of the consultation, on the duty to collaborate, was:
“How do you think this new duty would help drive collaboration between the emergency services?”
The question assumes that the duty to collaborate will have that effect. The wording is, “How do you think the duty would help drive collaboration?” rather than, “Do you think a duty is necessary to drive collaboration?”
Jake Berry (Rossendale and Darwen) (Con)
Is the hon. Lady sure that the question was not, “How do you think the duty to collaborate will make a difference?”?
Lyn Brown
I am fairly certain that I read that right.
Question 2 is almost worse. The consultation exercise sets out a process by which a PCC could assume control of a fire and rescue service and then asks consultees what they think of that process. If we were really interested in people’s views, we would ask what they think of giving PCCs those powers in the first place, but this Government are not interested in the views of the people they consulted, so they did not ask that question. Unfortunately, we cannot legislate against inadequately drafted consultation questions; I tried, but the Clerk of the Committee—nice man though he is—ruled it out of scope, which is a great pity.
The Bill’s provisions for public and stakeholder consultation need to be tightened up considerably. As the Bill is worded, the consultation process could be weak and almost non-existent, and it does not require PCCs to discuss their proposals and seek the assent of all relevant stakeholders. The provisions for consultation are contained within paragraph 3 of proposed new schedule A1 to the Fire and Rescue Services Act 2004. Members will note that as it is worded, the Bill only requires the Secretary of State to
“make arrangements to seek the views”
of local people. That could mean something as little as an advert in a local newspaper with a dwindling circulation, a single public meeting or a notice on the Home Office website with an email address for responses. I fear that the clause is totally inadequate. It falls short of the language I would expect from legislation that intends the Home Secretary to engage in a full consultation with the widest community and to give local people the time, space and opportunity to have their views taken seriously. If the Minister would graciously accept amendment 170, we could get closer to having a decent, meaningful and comprehensive consultation process.
Amendment 171 seeks to ensure that all local people are consulted. At the moment, the Home Secretary has to seek the views of people in the police and crime commissioner’s consistency. We think that it is appropriate that she consult those who live in the area covered by the fire and rescue authority that is to be taken over. For example, Thames Valley contains three fire and rescue authorities. If the PCC proposed to take on the responsibility of only one of them, it should be the residents of that authority’s area, not the whole Thames Valley policing area, who are consulted. We need to seek the views of the people who will be affected. Their views should carry the most weight. These reforms are about the future governance of the fire and rescue service, so the people whose fire and rescue service is changing should have a say. What is the Minister’s justification for choosing the entire policing area as the relevant constituency?
Amendment 172 deals with statutory consultees. At the moment, the Bill makes local people and the relevant local authority a statutory consultee. We are of the view that that is inadequate. Any consultation must include the fire and rescue authority that is to be taken over, as its staff are presently charged with guaranteeing fire safety and resilience in the local area. If the Minister stands up and says, “Of course the local fire and rescue authority will be consulted,” I will accept that he imagines that to be the case. However, if he thinks that they will always be consulted, there is no harm in accepting our amendment and adding fire and rescue authorities to the list of statutory consultees. We will, however, safeguard against the unhappy event of a PCC taking over a fire and rescue service without its governors having a say. That would be the most hostile of hostile takeovers.
We are of the opinion that the relevant workforces ought to be statutory consultees. Why would they be left out? If the proposals are in the best interest of the fire and rescue services, the workforces will support them. I do not have to tell the Minister that they are the most dedicated and brave of our public servants, and they deserve a voice. The people working in our emergency services know the challenges that their services face better than anyone. Anyone with the future of the emergency services at heart should want to hear what they have to say. For that reason, I urge the Minister to accept the amendment. It is really not much to ask. I am sure he agrees with me on this.
If the Minister’s proposed reforms are to work, he needs local people and staff to buy into any change of governance. Those people have the right to be assured that the changes are positive and in the best interests of the service and public safety. If the PCC is unable to persuade those stakeholders, it would be best if the merger simply did not go ahead. I urge the Minister to accept amendments 170, 171 and 172 to ensure that local people and stakeholders are properly consulted and to avoid the sense that these reforms are being imposed from the centre against the wishes of local people, professionals and our emergency services, and against the interests of the fire service and public safety. A top-down reorganisation without the agreement of local people and the workforce is the last thing that our fire services need.
Amendment 180 would ensure that the panel that the Home Secretary uses to guide her through a business case is genuinely independent. The amendment would ensure that the review of the business case for a PCC takeover is independent of the Secretary of State. It states that the panel must not be Government appointees. It would instead empower PCCs and local authorities to select the panel. It has been tabled with the support of the Local Government Association.
As worded, the Bill states that where the PCC has put together a proposal to take on the governance of the fire and rescue service, it has to consult with the upper-tier authorities in its area before submitting it. Where one or more of the upper-tier councils does not support the proposals, the Secretary of State has to seek an independent assessment of the PCC’s proposals.
Paragraph 339 of the explanatory notes states:
“Such an independent assessment may be secured from HMIC, the Chief Fire and Rescue Adviser or any other such independent person as the Secretary of State deems appropriate”.
The chief fire and rescue adviser, although a very decent bloke, is directly employed by the Home Office. Her Majesty’s inspectorate of constabulary also receives its funding from the Home Office. There is therefore a question over how independent an assessment can be if it is carried out by Home Office employees on non-departmental public bodies funded by the Home Office.
Amendment 180 would mean that independent assessment is carried out by a panel of independent experts appointed at a local level rather than by central Government. The experts on the panel could include representatives from organisations such as the Chartered Institute of Public Finance and Accountancy, the Fire Service College, business schools and academic institutions, such as the London Business School or Cranfield University, the National Police Chiefs Council or companies with experience of advising and supporting the fire and rescue service and the police, such as Grant Thornton. There is a real danger that this is a recipe for a top-down reorganisation. It should not be left to the Secretary of State to appoint people to make the independent assessment. To avoid this danger, the Minister should accept Amendment 180.
Finally, Amendments 173, 177 and 178 deal with what consent requirements ought to be in place before a PCC can take over a fire and rescue service. We believe that this should not happen without the clear, unequivocal approval of local people, which is best measured by a vote or through the clear decision making of their locally elected representatives. Our amendments have been tabled to have that effect.
Amendment 173 would require the Home Secretary to gain the consent of the relevant fire and rescue authority and the relevant local authority before approving a takeover. As the Bill is currently drafted, a PCC can take over a fire and rescue service without the consent of the fire and rescue authority. We believe this is a recipe for hostile takeovers and should be avoided. Amendment 173 seeks to avoid conflict between arms of our emergency services, which could be both damaging and distracting for essential emergency services. It seeks to improve and make the process transparent by ensuring that the consent of a fire and rescue authority is a mandatory requirement of any PCC takeover.
Fire and rescue authorities are trusted experts on the fire service. Firefighters, fire officers and the public know that those who have served on the authorities have had the best interests of the fire service at heart. The councillors who serve on them have years of experience and a genuine deep knowledge and judgment gained by overseeing the strategic development of fire services in their local area. They know the integrated risk management programme intimately, and each lane and byway; the response time to all communities; and the extra value that firefighters bring to their communities through the additional work undertaken to care for the vulnerable or as a crime diversion. Surely there can be no doubt that they have done a good job and that their work has continued to provide safe communities, despite the swingeing cuts to service imposed over the past years.
The fire service has absorbed difficult financial reductions over the past years. Some 7,000 firefighters have been lost to the service over the previous Parliament as a result of a cumulative cash cut of £236 million. However, fire and rescue authorities have managed those reductions, hard as it has been, and have sought new ways to keep response times to a minimum and to focus, as much as humanly possible, on their governance work, playing an increased role in natural disaster relief and managing to remain one of the most trusted public services.
Lyn Brown
I say gently to the hon. Lady that to get people to work together, we need to respect them, and each bit of the process needs to be treated equally. I also say gently to her that Sir Ken’s report was written three years ago and since then, the landscape has changed significantly.
Amanda Milling
In Staffordshire, we waited six months for the fire authority to engage in discussions. Those were six months during which collaborative work could have taken place. Does the hon. Lady recognise that the Bill will speed up the process and lead to more effective collaboration?
Lyn Brown
The hon. Lady obviously knows her own area better than I would ever presume to, but six months does not seem to be a horrendously long time to organise joint working if there are fundamental differences and it requires resources. I say to her again: one of the problems with the Government’s approach is that an hon. Member or one of the PCC’s staff can say, “I’ve been waiting six months for some collaboration to happen. It hasn’t happened, so I’m going to make sure the PCC takes over.” Decisions will be made in haste, with the sword of Damocles hanging over people’s necks.
Earlier in Committee, I mentioned just a few of the many collaborative projects that are happening among our emergency services. Each successful project depends on the emergency services trusting each other as equal partners in a common cause. If PCCs are encouraged to work against, rather than with, their local fire and rescue authority, there is a genuine danger that such projects will fall by the wayside. A Government who are interested in partnership should be going out of their way to reinforce partnerships. In my world at least, the partnerships I am involved in are based on equality, respect and trust.
In the world of public services, the equal importance of all our public services and the equal status of those tasked with running them should be upheld. That is what we should be doing, rather than creating hierarchies that rouse only distrust. It could be highly counter-productive to create uneven partnerships, with people looking over their shoulders and questioning their partners’ motivations.
Amanda Milling
Nobody would dispute that there are good examples of collaboration, but, as I say, it is patchy. Surely the Bill is about ensuring that there is good collaboration throughout the country. I am sure the hon. Lady will agree with me on that.
Jake Berry
In the first evidence session, many of the witnesses described collaboration as patchy. I asked whether the Bill would increase or reduce the amount of collaboration, and the witness said that it would increase it. Why does the hon. Lady disagree with the expert witness?
Lyn Brown
In my experience, collaboration often does not work when it is between forces of the same nature. There are often hard and fast boundaries between fire service areas and between police authority areas. I have, though, seen inter-service collaboration work really well. When the Committee asked the witnesses those questions, we did not specify the nature of the collaboration that the individual then described as patchy. There is some patchiness in collaboration between police forces and between fire authorities, but the best collaboration I have seen has been between the emergency services.
My anxiety about the decision in the Bill to give PCCs the right to take over fire and rescue services is that we will create unequal partners. In a world of unequal partners, decisions might get made for the wrong reasons. That is what I am trying to prevent. If the partners in an area that are talking about whether they can merge back offices, share a physical space or have the same telephone infrastructure are in a position of equality and agreement, it is of much greater benefit to the local area than if they are not.
Jake Berry
The hon. Lady is giving an excellent speech, but perhaps I may press her once more. The Opposition have said that the real difference is that, because of the nature of the services they provide, fire services are much smaller than police forces. Is she not therefore making the point that there could never be any collaboration between the fire service and the police force because the fire service, in and of itself, is smaller? If so, I profoundly disagree, because I think there is a real opportunity to collaborate, despite the disparity in sizes.
Lyn Brown
No. The disparity that I am talking about is not one of sizes, budgets or the nature of the services; it is a disparity in power. If one service has the right to take over another service, there is a disparity within the power relationship. The size does not matter. If we were saying that fire authorities had the right to take over police authorities, there would be a disparity in power, not in budgets or legal powers.
Our amendments are not only about involving local fire and rescue authorities; we think it is vital that any changes to the way in which our essential emergency services are governed have the support of the public. Amendment 173 would require such support to be gained through the approval of local representatives on the local authority. Amendment 177 would require that, should that approval not be obtained, consent must be gained through a referendum of local people.
I know that the Government have a strange relationship with referendums. At one moment, they seem to support referendums and think we should become a Switzerland of the north, deciding issues by plebiscite—with, for example, referendums on council tax rises—and not trusting the usual way of the ballot box, apparently on the grounds of localism. However, the Government seemed to fall out of love with the Swiss way in 2012 when they asked our 11 largest cities by referendum whether they wanted directly elected mayors, and all but one said no. The Chancellor, in his little way, decided to ignore that clear lack of mandate and is absolutely insistent about getting the mayors he wants in our major cities, in exchange for the delegation of powers. The Government seem to like referendums, as long as they get the results they want.
I raise the issue of referendums because the Government seek to argue that the reforms in the Bill are locally led. In the past, when they have worn a localist hat—not that it fitted them very well—the Government have indicated that it is for local people to make decisions on major local governance issues via referendums, and that major governance decisions should not be made by a Whitehall figure such as the Home Secretary. The decision on mayors and on fire and rescue governance is fundamentally about the transfer of power from the collective representation of local authorities to a single individual. Indeed, many of the Minister’s colleagues have said that they favour the reforms partly because they put power in the hands of a single person.
Amanda Milling
The hon. Lady has talked about a takeover a number of times. We are talking about a single individual who has direct electoral accountability to the public. If we had fire commissioners and were talking about the police coming under their remit, would she be pushing back on such a reform?
Lyn Brown
It has been known. I would object to such a reform, for all the same reasons.
The proposals are effectively about creating mini mayors. If this Government limp on after the European referendum, my guess is that we shall see other powers—probation, schools and who knows what else?—passed over to the PCCs. The Minister knows in his heart—I know he has a heart, although I am giving him a hard time today, for which I am sorry—that the reforms are about bolstering PCCs to the point where they become mini mayors. I do not think that he will say so, because he knows that there is no democratic mandate for it. There isn’t one—not at all.
Lyn Brown
Sorry. I will read from the manifesto and the Committee can tell me whether it states clearly that there is a plan to put fire and rescue services under PCC control:
“We will enable fire and police services to work more closely together and develop the role of our elected and accountable Police and Crime Commissioners.”
Honestly, that really does not say—
Jake Berry
On the hon. Lady’s emphasis, as I mentioned in connection with the questions in the consultation, there is clearly no comma or pause in that sentence—it has an “and” in it. The statements are clearly linked, so there is a clear statement in our manifesto that this is our intention. I am proud to be part of a majority Government delivering a Conservative manifesto.
Lyn Brown
For the time being. I did not see that when I read the Conservative manifesto last year. When I was walking around the country talking to firefighters and trying to persuade them to vote Labour, if I had realised what the Government intended to do from reading that sentence, I am sure I would have persuaded an awful lot more of them to vote red, rather than blue.
For the benefit of openness and transparency, and so that we may underpin governance with democracy, I urge the Government to accept amendment 178. What kind of localism agenda do the Government have if they are willing to force through a takeover when they have the support of neither local representatives nor the relevant electorate? This proposal was not clearly stated in the Government party’s manifesto. If the Minister rejects the amendment, his and the Home Secretary’s centralist and non-democratic agenda will be clear for all to see.
I hope that the Committee can see that the Bill is a recipe for the hostile takeover of fire and rescue authorities. Experience has shown that reorganisation without local consent and approval can lead to chaos, low morale, disorganisation and dysfunction—we only have to look at what happened in the health service. As the health service has also shown, reorganisation can waste an awful lot of money. The Minister does not want to be responsible for a top-down reorganisation as dysfunctional and anarchic as Lansley’s reforms of the NHS. He should take the opportunity to accept amendment 173. Our fire and rescue authorities need a say.
If the Minister truly believes in localism, he should also accept either amendment 177 or amendment 178. The Government have persistently argued that these reforms are part of a localism agenda, but they empower the Home Secretary to overrule the wishes of local people and their representatives. That simply cannot be right and it is not localism.
The Minister for Policing, Fire, Criminal Justice and Victims (Mike Penning)
From a sedentary position I accused the shadow Minister of reading a speech written by the Fire Brigades Union. It clearly was not written by the FBU because there were some really big words in there. However, some of the language in there was quite similar to what I have heard from the FBU. That was not personal and we beg to differ.
Mike Penning
I apologise to the Committee but I intend to speak at length on this part of the Bill, because the previous debate on clause 6 stand part was to introduce schedule 1. I had always intended to do that because I knew the shadow Minister had extensive comments.
I will not get into top-down discussions about what happened in other Departments. I remind the shadow Minister of what happened with fire control centres being regionalised. That was probably the biggest disaster and waste of money that the fire service has seen in our lifetimes. I am still dealing with the leases and trying to get rid of them. The fire Minister at the time, a good friend of mine, was highly embarrassed about that. He was moved on to other things, wrongly in my view because he was a damn good fire Minister who stood up for what he did.
At the end of the day, the decisions on whether PCCs should take control of fire authorities will be part of a negotiation package. Let me explain what the Bill says. A PCC would need to make a local case and canvass the views of local people, including the fire authorities. If, and only if, an agreement cannot be made, then he can ask the Home Secretary to have a look at it, who then would have an independent view. Anyone who knows Tom Winsor—the shadow Minister does—will know that Her Majesty’s inspectorate of constabulary is mightily independent of the Home Office. It would be interesting for him to read that he is just a civil servant or Home Office apparatchik. He is very independent, so it does not need to be that way.
We are trying to look at this. Where collaboration has worked and where services want to come together, that is fine; and where collaboration has taken place and they do not want to come together, and nor does the PCC in that area, that is fine. Perhaps the fire authorities might want to look carefully at what is happening with the mayoral system. The shadow Minister freely admits that it has not worked in London. There will be a duly elected mayor who will be running the fire and police administratively, not operationally.
I listened carefully to what the shadow Minister had to say about councillors who have sat on committees for years. They are not elected to that role.
Mike Penning
It does and it allows people who do not live in London or one of the larger metropolitan areas with a mayor to have that elected person responsible. It might be difficult for councillors who have been sitting on committees for years to turn around and impartially say, “Hey, we have been doing it this way for years. There may be a better way to do this.” I fully understand why some of the councillors who have spoken to me do not want change. That is the same argument we had when police authorities were removed and the PCCs came in. The PCCs are an unmitigated success—they must be, because Her Majesty’s Opposition are supporting them. Therefore, given that the Government had a manifesto commitment to push forward with giving them this role—it is there in black and white—why would we not do so?
To mitigate the concern raised several times by the shadow Minister that money that comes from the fire precept could be offset and used for police, those are two separate funding streams that cannot—
Mike Penning
No, not currently, because under the legislation they cannot be used across. Of course, common sense could be used. For instance, if a new police station is being built, we could bring joint funding together for that, but the accounting officer would have to agree to that.
Why do we need to do that? In my visits around the country I have been shown brand spanking new police stations—lovely! When we asked whether there was a consultation with fire to see whether they could be in there, we were told, “Well, we did think about it, but actually we needed it quite quickly and we needed it here.” The real difficulty is that we cannot put a fire station into a police station—those big, red engines do not fit in so well—but we can do it the other way around. We have seen that, and it has operated well. The rationale behind what we are trying to do is that when common sense cannot be agreed on, there must be a mechanism. The cost of a referendum would be astronomical and disproportionate. I did not hear of referendums when the fire control centres were regionalised either, but that was an unmitigated disaster.
I will touch on a couple of other points. The PCCs categorically have to make sure that they consult, because otherwise they will put their business case to the Home Secretary and when the independent review is provided their case will be rejected. The Bill confers a duty on PCCs to
“consult each relevant authority about the proposal”.
That ensures that consultation requirements capture all local authorities that operate fire and rescue committees or nominate members to a combined or metropolitan authority. That is in the Bill—it is physically there.
The other thing that I thought was somewhat concerning in one of the amendments was the concept that we would have to combine a referendum with when a local election takes place. In my part of the world in Hertfordshire, if that was talked about just after county elections it would be four years before we would have the next all-up county elections, and I do not think that would be acceptable.
The Bill’s concept is to try to ensure that taxpayers’ money is spent more efficiently and to keep separate emergency services. The hon. Member for North Durham touched on where ambulance services were and, interestingly enough, plans are already coming forward to some PCCs for triage ambulances to be brought in by local health service commissioners. That will evolve, but we are trying to have two blue lights working closely and the ambulance service working in two-tier collaboration. With all due respect to the shadow Minister, I think all the amendments are a delaying tactic for people who do not want that. If we are really honest about it, that is what they are about.
I respect that the Labour party does not want PCCs to run fire authorities, but I humbly disagree. I want duly elected people accountable to the public running the fire and rescue service where agreements can be made, based on existing fire authorities. That is crucial. There are other areas where there will be difficulties, but why should it be different for someone who lives in a metropolitan area from someone who lives in Hertfordshire? That is fundamentally wrong, so I ask the Committee to reject the amendments, which in my opinion are a delaying tactic.
The Chair
When the hon. Lady responds, will she give some indication of which amendments—if any—she wishes to proceed with?
Lyn Brown
We would like to press amendment 178 to a vote. We do not believe that it was very clearly in the Government’s manifesto that they wanted to place fire services under PCCs. When the Minister spoke today, he reiterated what worries me. He said things like, “If the fire service does not agree, it can go to the Home Secretary”. No, it should go to the people. The people should decide whether they want their PCC to be in charge of the fire and rescue authority. It was not in the manifesto—if it had been, I would feel much better about this. I read out the manifesto, and it takes a cryptologist to understand what it means. I will not take up any more time, other than to say that I would like to press Amendment 178 to a vote. This side of the Committee believes in localism and democracy. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lyn Brown
I beg to move amendment 179, in schedule 1, page 113, line 16, at end insert—
“(7) Where an order under this section is made, the Secretary of State must make provisions for the establishment of a local fire and emergency committee within three months of the order.
(8) A local fire and emergency committee shall be comprised of a balance of members from the local authorities of the relevant policing area and independent experts.
(9) The local fire and emergency committee must—
(a) keep under review the exercise of functions of the police and crime commissioner,
(b) submit proposals to the police and crime commissioner,
(c) review any draft documentation produced by the police and crime commissioner.
(10) The local fire and emergency committee may require a police and crime commissioner, and chief fire officer, to attend local fire and emergency committee proceedings and to produce to the committee documents under the police and crime commissioner’s control or possession.
(11) The local fire and emergency committee may veto the appointment of a chief fire officer.”.
This amendment would place PCCs who assume control of a FRS within a framework of scrutiny which is similar to that proposed for the London Mayor.
The Chair
With this it will be convenient to discuss the following:
New clause 13—Inspectors of Fire and Rescue Authorities—
“(1) The Secretary of State must appoint—
(a) a chief Inspector of Fire and Rescue Authorities; and
(b) such number of inspectors of fire and rescue authorities as the Secretary of State may determine.
(2) The Secretary of State shall determine and pay to the persons appointed under this section such remuneration.
(3) The Secretary of State must instruct the Chief Inspector of the Fire and Rescue Authorities to—
(a) inquire into a matter mentioned in subsection (4); and
(b) to submit to them a written report on that matter by a date specified by them.
(4) The matters under subsection (3)(a) are—
(a) the state and efficiency of relevant authorities generally;
(b) the manner in which—
(i) a relevant authority is carrying out any of its functions under this Act; or
(ii) relevant authorities are carrying out such functions generally;
(c) technical matters relating to a function of a relevant authority under this Act.
(5) The Secretary of State shall lay a copy of each report submitted under subsection (3)(b) before Parliament.”
This new clause would require the Home Secretary to establish a national inspectorate for the fire and rescue service.
New clause 14—Amendment of the Fire and Rescue Act—
“Amend section 21 of the Fire and Rescue Act 2004 (Fire and Rescue National Framework), after subsection 2(a) insert—
“(b) must set out national standards for the discharge of fire and rescue authorities’ functions including, but not limited to—
(i) response times;
(ii) preparedness for major incidences;
(iii) quantity and quality of preventive work
(iv) firefighter fitness
(v) equipment and PPE, and
(vi) training””
This new clause would establish national standards for fire and rescue services.
Lyn Brown
I know, I have worked that out, but I was still sitting here thinking, “Why aren’t we voting?”
Amendment 179 would require the Home Secretary to set up proper scrutiny arrangements for those fire and rescue services taken over by PCCs. New clause 13 would require the Home Secretary to establish a national inspection regime for the fire and rescue service. Currently, the Bill provides for the police and crime commissioners to become fire and rescue authorities. We do not think the Government have made the case for this fundamental reform but, if it is to happen, there needs to be an overhaul of the scrutiny regime that they will face. There must be rigorous scrutiny of their performance to ensure proper accountability and effective public services. Amendment 179 would provide for that.
At present, a fire and rescue authority is made up of elected council members providing a diversity of opinion and internal parliamentary-style scrutiny. The make-up of the panel is politically balanced in relation to the relevant local council. Fire and rescue associations are made up of the councillors genuinely interested in improving the fire and rescue service and improving services for their community.
James Cleverly
The hon. Lady made a mistake in the list of functions when she said that the members of the fire authority were there to provide scrutiny. They are not scrutineers; they are the executive. They perform the executive function, not the scrutiny function. As I mentioned in my speech in the Chamber, this goes to the heart of a fundamental misunderstanding of the role of fire authorities. They are not scrutineers of the executive; they are the executive. Does the hon. Lady agree?
Lyn Brown
We have a diversity of authorities in the country. When a fire and rescue authority is part of a council, the council provides the scrutiny of the fire and rescue function. There is an in-built scrutiny of the fire and rescue services by the local authorities. The Bill requires a PCC to provide police and crime panels with relevant information regarding their role as the fire and rescue authority. Police and crime panels are currently comprised of members understandably concerned primarily with matters of policing, so the new role will present a considerable extension of the role of the police and crime panel.
The Home Office currently provides funding to cover the cost of operating police and crime panels under the new burdens principle. However, the Home Office is yet to confirm to panels whether the funding will be available from 2016-17. In addition, the Home Office funding currently amounts to only £53,000 per panel annually. The Home Office calculated the amount to be paid to panels on the basis that they would need to hold only four meetings a year to provide the PCC with the light-touch scrutiny that it was thought was needed. Panels have struggled to ensure that they provide appropriate scrutiny of the PCC and fulfil their statutory duty in just four meetings a year, and they will struggle even more if they are expected to scrutinise the PCC’s role as a fire and rescue authority as well.
How, then, do the Government expect police and crime panels to deal with that extra burden of responsibility? Will independent experts, with knowledge of fire and rescue services, be co-opted on to panels? Will the co-opted policing experts be expected to scrutinise the PCC’s job as the fire and rescue authority? If so, what training is in place to ensure that they develop the required expertise? I am concerned that this model of governance will not provide the level of scrutiny required. We will therefore have police and crime panels, which are already creaking under financial constraints, further lumbered with the requirement to scrutinise police and crime commissioners in their role as fire and rescue authorities—a subject outside their expertise. Is it any wonder that the fire and rescue service is concerned about becoming a Cinderella service?
In our amendments we are proposing to create a separate fire and emergency committee, to be set up with powers to properly scrutinise police and crime commissioners over their role as fire and rescue authorities. Given what the Government are proposing in London, it is clear that they should support my amendment, because it is all consistent. In the provisions for London, the Bill sets out a fire and emergency committee to scrutinise the fire commissioner, who is appointed by the Mayor. Why should the rest of the country expect less scrutiny? Our amendment would create analogous committees wherever a PCC takes over a fire and rescue service. That will ensure that the governors of all fire and rescue services get the necessary level of scrutiny. What is good enough for London is good enough for the rest of the country.
What would that look like, and what powers would they hold? We propose that when the Secretary of State makes an order for a PCC to take over the fire and rescue authority, she must make provisions to establish a local fire and emergency committee within three months of the order. The committee would be comprised of a balance of members from the local authorities in the relevant policing area. It will also be able to co-opt independent fire experts on to the committee. They would be responsible for keeping under review the exercise of functions of the PCC, submitting proposals to the PCC and reviewing any draft documentation produced by the PCC. In short, they would provide scrutiny of, and advice to, PCCs in relation to the performance of their fire responsibilities, and they would be a proper scrutiny body rooted in local democracy.
This amendment would also enable a local fire and emergency committee to require a PCC and chief fire officer to attend local fire and emergency committee proceedings and to produce to the committee documents under the PCC’s control or possession. They would have powers as well as responsibilities. The Government will note that the proposals for the role of the fire and emergency committee is concurrent with its role in London. If the Government support it in the capital, they really should support this amendment.
The amendment would create a separate fire and emergency committee to rigorously scrutinise the PCC on its fire responsibilities. It would remove budgetary pressures from the police and crime panels and ensure that experts in the field of fire are given a scrutiny role. Furthermore, it would bring scrutiny of PCCs outside London in line with that in the capital. If the Minister believes that a fire and emergency committee is required in London, I urge him to support this amendment.
New clause 13 would require the Home Secretary to establish a national inspection regime for the fire and rescue service. I tabled it to put on the record my concern about the absence in the Bill of any form of independent inspection of the quality of fire and rescue services. Police forces are subject to review by Her Majesty’s inspectorate of constabulary, which has a remit to ask the questions that citizens would ask, publish the answers in an accessible form and interpret the evidence. That allows the public to compare performance, and enables the public and their elected representatives to push for improvements.
Some people will no doubt resent or even resist the remit of HMIC. I can hear them now saying, “Who inspects the inspectors? Who are they to lord it over us on the frontline who know what’s what?”. In the same way, some people in the education sector resent the existence of Ofsted—not something I want to examine in detail here, I am sure the Committee will be pleased to know. My point is that some form of independent inspection is part of the process through which the public, as well as decision makers, can be assured about the quality of the public services on which they rely. It is also a route that identifies questions that need to be asked, issues that need to be flagged, concerns that need to be aired and challenges that need to be posed.
The last Labour Government brought to an end the former fire and rescue inspection regime. We replaced it with a role for the Audit Commission in providing a view on the economy, efficiency and effectiveness of fire services. Of course, the coalition Government, in their bonfire of the quangos, abolished the Audit Commission. It is an excellent development that, following the abolition of the Audit Commission and the national performance framework, the Local Government Association developed the operational assessment and fire peer programme as the focus of sector-led improvement, providing a boost to local accountability.
It is great news that, since its launch in 2012, all 46 fire and rescue services have undertaken the review. I am sure the Minister has heard, as I have, from front-line fire chiefs and operators that the peer review has helped them to develop their services and challenged them on areas where they could make their performance better. It has helped to plug the gap that was left behind, although some of us might think it is a bit too soft, because the peer review stuff does not have any teeth if people do not choose to improve the services that they are providing.
I am and always have been a great believer in local accountability. As a councillor for 18 years before being elected to this House, I experienced at first hand the discipline and accountability of an election, and the role of the ballot box in enabling our communities to have a say in the quality and effectiveness of the services that are delivered to them. It is a very powerful tool. However, excellent as the peer review programme and the accountability of the ballot box are, when it comes to a function as vital to public safety and community well-being as the fire and rescue service, I do not think they are good enough.
Mims Davies (Eastleigh) (Con)
I am thinking back to the point about accountability and scrutiny in the fire service. As a councillor for nearly six years—I did not do quite as many years as the hon. Lady—it was the one area that I felt I had very little connection with, despite being an elected member. As a Member of Parliament, I have connected with the fire service in Hampshire and seen great work where it has looked at its peers and worked very well with the police. As a local councillor, I felt that the fire service was the one area that the electorate were excluded from in respect of how it worked with the community through elected bodies. I understand where you are coming from on this, but I like the idea of the PCC having a direct link with the community.
The Chair
May I gently remind the hon. Lady that she does not understand where I am coming from? I am completely neutral in this.
Lyn Brown
I am grateful to the hon. Lady. I think that I have moved on from where she is coming from, but I would be happy to have a conversation with her in the Tea Room about it. I left local government in 2005, when I came to this place. Before that, I sat for 15 years on the executive of my council, so I have experienced the scrutiny of my peers and I can tell you that in a place that was 60-nil, it was sometimes a little uncomfortable.
Lyn Brown
Did I do it again? I am sorry. It has been a long day and it is getting longer. I understand where the hon. Lady is coming from, but we do need to see the scrutiny of public services by people who are not immediately involved in delivering those services. We have to find a way to ensure that there is challenge and inspection.
At the moment, if a PCC takes over the fire and rescue service, three quarters of the services covered by that PCC will have an inspectorate judging what is done. Less than a quarter—the fire and rescue service—will have no inspection at all. That is not healthy for the public service that is not being scrutinised or inspected, nor is it healthy for the whole. I do not think that, in those circumstances, the fire and rescue service—the bit not being inspected—would receive equal consideration and concern to the parts being inspected. Does that make sense?
Jake Berry
The argument the hon. Lady is making for new clause 13 might receive further support if we understood how much the new fire inspectorate would cost. Is she able to update the Committee on the saving that was made when the previous fire inspectorate was abolished and the Audit Commission went in? Finally, can she say whether the reintroduction of the fire inspectorate would have the support of the fire unions?
Lyn Brown
I do not speak on behalf of the fire unions and I genuinely do not know their view on this. The scrutiny and audit function of the PCC costs £58,000 a year, which is funded by the Home Office. I do not have any figures on the abolition of the Audit Commission, nor on how much it cost for it to do anything.
I should tell the hon. Gentleman that, as a member of Her Majesty’s Opposition, one gets the Bill and then has the opportunity to read it and write one’s notes in the evenings and at weekends. I do not necessarily have the resources that are available to the Minister, although I must say that this Minister was very generous in allowing one or two of his resources to visit me for a whole hour to discuss the Bill. That is the aid that we get, so I am sorry that I do not have the figures at my fingertips. I am sure that the Minister will write to the hon. Gentleman with that information.
Mike Penning
Actually, I will be very generous and write to the whole Committee. I say subtly to the shadow Minister that she may find, when I get a chance to speak, that I have a degree of sympathy with what she is saying, although I will probably not be able to accept the new clause.
Lyn Brown
That is the best news I have had all day, but I will still go on.
If I were the Minister, there are three features of fire and rescue services and flood services on which I would want to be assured, so that I slept well at night. In homage to the three E’s of the post-1997 Labour Government of economy, efficiency and effectiveness—how could we forget?—I will name them the three R’s. As a Minister, I would want to know the following. Is each fire and rescue service robust—does it have the capacity to carry out the functions expected of it? As for resilience, can it continue to function under conditions of emergency and strain? On resources, does it have an adequate and sustainable budget to provide the resources it needs to undertake its functions? Those are the matters that I would expect the chief inspector of fire and rescue to support. In speaking to new clause 13, I am inviting the Minister to share with us how he envisages being assured that the fire and rescue services in England and Wales are robust, resilient and resourced.
New clause 14 would make the scrutiny and inspection regime I am calling for more rigorous by introducing a set of national standards into the fire service. The standard of protection and care that somebody receives from the fire and rescue service should not depend on where they live. Fire and rescue services have the freedom to develop their own standards of emergency cover, and that means that there is no national coherence in service standards. Across the country, despite the hard work of our dedicated and professional fire service, response times are increasing and fewer hours are being spent on preventive work as a result of the budget cuts imposed by the Government.
Being an ex-firefighter himself, I know that the Minister is aware that when dealing with a risk to life, every minute counts. Studies on response times have shown that if a person survives near to a fire for nine minutes, by one minute later the fire can increase in size by such an extent that they will die. More worryingly, if that is possible, nine minutes after ignition, a fire might still be small enough for the first crew in attendance to put it out with a hose reel, whereas one minute later, the fire could have grown by so much that it cannot be extinguished until another crew arrives and more complex firefighting systems are set up. The difference between arriving after nine and 10 minutes is not just a minute worse—response times do matter. I know that the Minister agrees with me on that, so I will not embarrass him by asking him to agree. He has been a professional, and he understands the issue.
A Government who were interested in leadership and the improvement of public services would introduce minimum standards across the country to tackle that issue. Those would provide a warning sign when reductions in spending and service provision created an unacceptable level of risk. It might also encourage an improvement in the slipping response times if standards were set starting from the principle of providing genuine and progressive improvement in the service that is provided to the public. Sadly, given the budget reductions before us, things will get worse.
The National Audit Office produced a report in November last year on the sustainability of fire services. It found that the Government did not know whether service reductions were leading to increased risk, and that they will only become aware of imprudent service reductions after the fact. That, the National Audit Office argued, was in large part because the Government do not model risk and have not sufficiently scrutinised the processes.
New clause 14 would provide national standards below which no fire and rescue service should drop. We would like to see national standards for response times; preparedness for major incidents; the quantity and quality of preventive work; firefighter fitness; equipment, including personal protective equipment; and training. Such a move would deal with many of the alarming findings in the National Audit Office report.
James Cleverly
This is an opportunity for the hon. Lady to take a breather. Does she not recognise that there is something of a contradiction between the points she was making on some of the earlier clauses about decentralisation, localisation, local accountability and local budget holding, and the position she is taking with this new clause, where she wants a whole raft of nationally set guidelines? There were national guidelines for the fire and rescue service—I concede that I might be wrong on this—under a Government formed by her party. How does she reconcile the localism she put forward in earlier amendments with the centralisation in her proposed national policy framework?
Lyn Brown
I admit that the hon. Gentleman has a point, but service reductions are going so far that in some parts of the country fire chiefs are telling me that their services are no longer sustainable. Some fire chiefs tell me that it is taking them 20 minutes to get to a shout and that if a person lives in the middle of the country, it takes at least 20 minutes for a fire appliance to get to them if there is a fire.
I am arguing for transparency. If I lived in a home where I knew a fire appliance was not going to be able to get to me for 20 minutes to half an hour, I would first want to have a conversation with my elected representatives who sit on the fire authority or the PCC, whoever it is who is responsible and talk to them about that 25 minutes to half an hour. I would be painfully aware that x fire station that was closer to me had been closed down a few years ago because of budget reductions. I would also be in a position where I could, as a home owner, make sure that I had all the necessaries in my home. For instance, I might want to invest in a sprinkler system. I would want to make sure that I had alarms. I think transparency is essential.
We are trying to open up a discussion about response times and standards because I do not think that that discussion is happening in the country in an open way, and it is about time it did. This is a probing amendment and I will not press it to a vote. We need to have a conversation collectively about what standards we expect from our fire services.
Jake Berry
Will the shadow Minister concede that if she succeeds in amendment 179 about a local inspection framework or gets the best news she has been waiting for all day from the Minister if he moves slightly and accepts that this amendment, although a probing one, is unnecessary because the standards could be set locally by local inspection committee?
Lyn Brown
I accept that, which is why this is a probing amendment. We are trying to say to the Committee that there are consequences if a PCC takes over a fire and rescue service. Three quarters of the service that the PCC will be responsible for is inspected fiercely; one quarter is not. We are very worried that our fire services are going to become Cinderella services. We are raising mechanisms by which we can have some kind of faith that the fire service will be able to deliver the service that people expect it to deliver. Many people in our constituencies and communities would be highly concerned to hear that there was a 20 minute lull before a fire engine or appliance turned up at their doorstep to put out a fire if they had called for it. We need to be much more transparent about this.
James Cleverly
I appreciate that this is a probing amendment designed to stimulate discussion on a particular topic. I congratulate the hon. Lady on doing that very thing. If the Opposition’s amendments are not successful in delaying more direct involvement for PCCs in the governance of fire, the hon. Lady and her colleagues could push for an explicit set of performance indicators for PCCs at election time so that they are held to account for the performance of their fire service. That might go a long way towards providing the assurances that she wants—I am trying to be helpful.
While I do not want to sound like a broken record, it reminds me that if I do not have a local councillor who actually sits on the fire authority—as I do in Essex—having that information under the current regime gives me no power whatever. I may be disgruntled about performance or pleased with it, but there is nothing I can do about it at the ballot box. Does the hon. Lady agree?
Lyn Brown
I have forgotten what the hon. Gentleman said at the beginning. He suggested that there should be performance indicators. If we had a set of national standards, they would in effect be a performance indicator for a PCC to work towards. I do not accept the issue around accountability: the idea that the person responsible for the fire service has to be a ward councillor in that area. We vote for individuals to serve on the council. The council is then elected. It is of a certain political colour or hue. That political colour or hue presumably determines whether x or y resources are put into a service. If I was unhappy with the performance of my fire service, I would vote for a different political representative, of a different colour or hue, who was elected to my council.
Lyn Brown
In his dreams. Currently, each fire and rescue authority carries out its own integrated risk management plan. Using the level of risks and the resource available to the service, they set their own standards. Those standards can vary both in outcome and in how they are measured. For example, in 2013-14 Merseyside fire and rescue service had a three-tier target for response standards. The standard for incidents that were considered high risk was set at 5 minutes, 59 seconds; medium risk at 6 minutes, 59 seconds; and low risk, 7 minutes, 59 seconds. In the same year, Cheshire fire and rescue service replaced its variable response standards with a blanket 10-minute response standard for all incidents where someone’s life might be at risk. That is particularly shocking in light of the information regarding response times I referred to earlier. It really is time for us to begin to think about what a standard response time should look like across the country. I know that the term “postcode lottery” has become a cliché when we talk about public services, but those figures show that the standard of service people are receiving really does depend on where they live. We do not accept that inequality in service in our schools or in our hospitals, and we should not accept it in our fire service.
There is another concern. While I believe that most people understand that the fire and rescue service is delivered by their local authority, people still have some concept of fire and rescue as a national service that should be delivered in a uniform fashion. Therefore, even where people understand that it is provided locally, failure to deliver a reasonable standard in one area will directly affect people’s trust in their own fire and rescue service.
In conclusion, the system as it stands is unfair and quite possibly unsafe. National standards have worked in our schools and hospitals, but the Government have not introduced national standards in the fire service. This is not just about creating national standards for national standards’ sake, but trying to use them to improve the service. They can be used as a tool to arrest slipping response times and ensure that everybody receives an acceptable level of service from their fire and rescue service. If the Minister truly wants to show leadership—and I know that he does—and if the Government are interested in improving public services, I urge him to support our new clause 14, along with new clause 13 and amendment 179. Inspection, scrutiny and standards are all central to public service delivery.
Mike Penning
I will deal with the bit I cannot agree with. We probably could have saved the Committee 25 minutes, because I agree with most of the latter part of the hon. Lady’s comments, and we can do something about them. It was not the latter part of her speech that convinced me, but the first line, because it is common sense.
On amendment 179, when a PCC takes responsibility for the fire and rescue service, the remit of the associated police and crime panel will be extended to include scrutiny of the PCC’s fire and rescue function. Under the balanced appointment objective, which was set out in the Police Reform and Social Responsibility Act 2011, the panel has to have the skills to make sure that it can act, as the hon. Lady requested. Not one of them has come to me and indicated that they are so rushed that they could not do this. Bringing other skills to that panel would be really good.
On inspection, the present peer review is something that the Home Secretary and I, and all the chiefs I have spoken to, believe is not acceptable, and we are going to review it. I will not set up a brand spanking new one because it was abolished for a reason, as it was very expensive. However, we will have a non-peer review. If someone is reviewing their mates down the road, the assumption, although I know they are all professionals, is that they will look at what they want to look at, not at what they do not. We will look at that, although I am not certain I will have a provision ready for Report. We will work together on that, because it is particularly important. It is also important that we get together all the professionals in the fire service, including the unions, to ensure that we can do that.
I am sympathetic, too, to the point on national standards. This is where I will be gentle. We were not in government 13 years ago when national standards were abolished and it was decided to make decisions locally, as the hon. Lady remarked. However, we need to have something not dissimilar to the College of Policing, so that we can bring professionals together to have a better understanding of response.
This is a really complicated area. I am conscious that the workforce in the fire service has moved an awfully long way in the past couple of years. However, to get this right we may need to do more. In the north-west, referred to by the hon. Lady, there are only 24 retained firefighters in the whole of Merseyside. In my part of the world, we have an awful lot. As for the hon. Lady’s constituency, there are none in London. It is ludicrous in the 21st century that stations are closing when we could have day manning—eight hours—and night retained.
I have said before that I was an Essex fireman. This is very important—not that I was a fireman, because I was not a very good one—because I was a qualified fireman who went to work and did my job. However, when something happened on the hon. Lady’s patch and they needed mutual aid from Essex, believe it or not, we had to come from Southend, Leigh or Basildon to go to London ground, because London would not allow retained firefighters to come to London ground, even though they needed the help. I know the reason why but I will not bring it up in Committee because it would not help. They had to come and back-fill for us, so we as whole-timers came into London. In the 21st century, when so many of those retained firefighters are whole-time, certainly in my part of the world, that is the sort of thing we are looking at.
In the north-west, Lancashire has moved to an 8/8 system. The whole-time firefighters do the busy times—they are all there at the same time—then they move to a whole-time retained situation at night. That is why one size is not going to fit all for the whole country; it cannot. The hon. Member for North Durham, who is not in his seat at the moment, might be interested to know that there are police community support officers in that part of the world who are retained firefighters. I cannot think of anything more community spirited in this wonderful country where volunteering is widespread. I know we will talk about volunteering again later. What more could we want?
One size is not going to fit all, which is why 13 years ago, the Labour party abolished response times. It is for locals to make up their own mind. However, I take on board the fact that we need to look carefully, as we have done with the police and the College of Policing, at a better way to ensure that we have a common standard that includes recruit training. Admittedly, many fire services around the country have not recruited for many years, but they will do so eventually, because that is the nature of the job as people retire. We should also include training through the system and the ranks, as we get skills coming forward.
I fully understand that point, and I will do as much as I can to work together with the relevant bodies on that. I think the hon. Lady might agree, as she indicated this was a probing amendment, and withdraw it.
Lyn Brown
The Minister has just made my day. What can I say? I am a very happy shadow Minister standing here. It is lovely to be so loved. I also want to pay respect to the retained firefighters, but, if the Minister does not mind, I am not going to be drawn into a debate about crewing, although I recognise what he says about boundaries. For me, that is where the Bill does not do it. We need to make sure our borders are softer than they actually are in order to keep our communities safe. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
With this it will be convenient to discuss the following:
Amendment 183, in schedule 1, page 113, line 38, at end insert “, whereby any budget transferred must be maintained at that same level for a maximum period of five years.”
Amendment 184, in schedule 1, page 113, line 41, after “rights”, insert “, budgets”.
This amendment would protect agreed FRS budgets.
Lyn Brown
These amendments would protect fire service budgets for five years after a PCC takes over management of a fire and rescue authority. We are concerned that PCCs who have taken on responsibility for the fire and rescue service will have done so possibly to use fire budgets to bolster the spending power they have in the police service. They will not do this because they are bad people or because they do not care about the fire service; they will do it because the police service has been experiencing severe cuts in recent years, and the police and crime commissioner’s role and top priority is what it says on the tin: police and crime commissioner, not fire commissioner.
The police force is facing funding challenges. Budgets for next year have not been protected in real terms. They are being cut again for the sixth year in a row, at a time when crime is rising and the country is facing increasing risk. Some 18,000 police staff were cut during the previous Parliament, 12,000 of them front-line and operational staff. Such cuts are disproportionately affecting our metropolitan areas. For example, West Midlands police has been hit twice as hard as Surrey police. With six years of cuts behind them and another four years of cutbacks planned, the police are facing a whole decade of cuts to funding. It is no wonder that PCCs might be eyeing up the chance to take over the fire budgets to prop up their own dwindling resources, but this cannot be allowed to happen.
The fire and rescue service reduced spending by 12% during the previous Parliament—a cumulative cash cut of £236 million—and there will be more to come. We know from the local government funding settlement that fire and rescue services are expected to cut spending by a further £135 million by the end of the Parliament. A stretched service is going to get squeezed even tighter.
As I have said, the fire service is already experiencing significant budgetary pressures, and this is damaging services. Since 2009-10, there has been a huge cut in the number of whole-time firefighters. Durham fire and rescue service has cut its whole-time firefighters by 73, while Surrey has been cut by 91 and Cleveland by 120. Surrey fire and rescue service has also seen its number of fire appliances cut by a quarter, from 40 to 30. Hertfordshire lost a quarter of its fire stations in the same period. I wonder what the people of Hemel Hempstead think of that.
The Chancellor’s budget cuts are having a real impact on our fire and rescue services. Despite the hard work and professionalism of our firefighters up and down the country, we have seen response times increasing. I know that the West Midlands fire service, despite its excellent work, has seen almost a minute added to its response times in all incident types since 2010. A minute might not sound a lot, but I know that if I am trapped in a car, crushed by the steering wheel, or in a house on fire, every minute will feel like a lifetime. The Minister, as a former firefighter, knows that a minute can make the difference between life and death. Every second counts. I know that not all changes to response times can be attributed to funding for the fire service—our roads are a heck of a lot busier—but when a local fire station closes, response times are likely to increase.
Mike Penning
Fire services, like the rest of local government, asked for a four-year settlement and were given one. They know exactly where their budgets are. The Government amendment to schedule 1, to which we will come later, ensures that there will remain clear, transparent accounting arrangements for fire funding, and that effective scrutiny and accountability arrangements are in place. I reiterate that a PCC will not be able to use a fire budget for policing or vice versa. It says specifically on the face of the Bill that that cannot be done. Nothing in the Bill indicates anything to do with privatisation. I never heard of the fire service being privatised in the whole time that I served in it. I know that a bit of scaremongering is going on, but the Bill is absolutely rigid on that.
It is for Parliament to decide the funding arrangements, but the funding is set in statute, and everybody knows exactly where they are. There will be separate paths. Of course accountability is necessary, for instance on procurement, as we discussed earlier. I intend to publish a procurement table soon, like the one I published for the police, so that everybody in the country will know the main items purchased by the fire authorities, how much they paid for them and any discrepancies, so we can bring things together. I have used white shirts as an obvious example. At the moment, I can guarantee that most white shirts are being bought by the police and not by the fire service. There is no collaboration in the purchasing requirements. Surely that is logical, but the accounting for that will not come out of one budget; naturally enough, it will be done across the piece.
I think that generally, the shadow Minister feels that money could be taken from one pot and put in the other, but it does not say that on the face of the Bill, and I give guarantees on the Bill. She looks at me very nicely, as if she might not believe me. The Bill is quite specific that there will be two separate funding streams, to be accounted for with the accountability and scrutiny required. Only when collaboration occurs do we want to consider joint purchasing, and then it will be separated out. I honestly do not see the need for the amendment. If people keep talking about privatisation of the fire service, somebody somewhere might believe it, although not anyone on the Government Benches.
Lyn Brown
I am grateful to the Minister for what he has said. It has gone further than what is written on the face of the Bill. I ask him to take our amendment away and think about it, and consider whether he can make what is on the face of the Bill just a little more convincing. At the moment, we are not convinced, and there are people out there who are not either. We would be grateful if he considered doing so, but we will not push the amendment to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 1, in schedule 1, page 114, line 34, at end insert—
‘(3A) A fire and rescue authority created by an order under section 4A must appoint a person to be responsible for the proper administration of the authority’s financial affairs (a “chief finance officer”).
(3B) A fire and rescue authority created by an order under section 4A must appoint a person to act as chief finance officer of the authority if and so long as—
(a) that post is vacant, or
(b) the holder of that post is, in the authority’s opinion, unable to carry out the duties of that post.
(3C) Section 113 of the Local Government Finance Act 1988 (qualifications of responsible officer) applies to a person appointed under subsection (3A) or (3B) as it applies to the persons having responsibility for the administration of financial affairs mentioned in that section.”—(Mike Penning.)
This amendment and amendment 2 require a fire and rescue authority created by an order under new section 4A of the Fire and Rescue Services Act 2004 to appoint a chief finance officer who is responsible for the proper administration of the authority’s financial affairs.
The Chair
With this it will be convenient to discuss Government amendments 2 to 24 and 26.
Mike Penning
I am pleased to say, based on my scribbled notes from earlier discussions, that these are consequential amendments.
Lyn Brown
I would like to speak about amendment 8, which is part of this group. If the Minister wanted to call for a comfort break and a cup of tea, I would not object.
The amendment states that a chief constable, when playing the role of a fire and rescue authority, must secure “good value for money” from the fire and rescue service and from persons exercising functions delegated by the chief constable. I genuinely do not understand why the Government have tabled the amendment. I honestly do not get it. Would a chief constable performing the role of a fire and rescue authority in this scenario not already be covered by the obligation for local authorities to seek best value? If so, what is different and additional about the amendment? It appears to have an exclusively monetary focus on value, but does the Minister really think that fire and rescue authorities are not already trying to deliver the best service they can with the budgets they are set? If he does, why is he not confident that chief constables will also be honest and diligent administrators under his single employer model?
I must say that the task of deciphering the Government’s intentions is sometimes made more difficult by the process whereby they carry out legislation. The amendment was one among 56 pages of amendments that were dumped on my desk just a few days before this sitting. That meant that my whole weekend—Friday night, Saturday and Sunday—was taken up by working on the Bill. If the Bill had been in better order before it came before the Committee, the Minister would not have had to table so many amendments just before the sitting.
These are amendments, rather than original clauses, so they do not come with explanatory notes. I have not had the time to scrutinise or study them properly. I wonder whether this is the right way to go about parliamentary process. I have stood up to speak on this amendment so I can draw to the Committee’s attention the concerns that have been brought to me. The amendment might be used as a justification for the outsourcing of front-line services. One could imagine a situation where a chief constable outsources services to a private contractor and argues that his hands were tied as the contractor could deliver the service at a lower cost than the direct provision by the fire and rescue service.
We will get to privatisation later, but I am sure that the Minister would like to take the opportunity to put those fears to bed by offering a comprehensive reason as to why the Government felt the need to table amendment 8.
Mike Penning
I cannot believe that we are talking about privatisation again, especially on this group of amendments, but let me reiterate what I said earlier. There is absolutely no pressure, innuendo or anything else in the Bill on privatisation. The shadow Minister mentioned best value and asked why we are doing this. When I became the Fire Minister, I took a look at type-approved procurement. Our police service desperately needs body armour, and there was nearly £300 difference between one force and another. Where is the best value there? On batons, there was a difference of nearly £80. I would love to say that every single force will do exactly what we would expect them to do and get best value for the taxpayer, but with the Bill we are ensuring that that is exactly what they do and that is what it says on the tin. It has nothing to do with private provision. I hope that I have helped the hon. Lady out once and for all, but perhaps not.
Lyn Brown
I will press the Minister further on privatisation a little later, but I genuinely do not understand: first, why amendment 8 was not in the Bill in the first place; secondly, why it does not come with an explanatory note; and, thirdly, why the chief constable is not already covered by the obligation on local authorities to seek best value. I genuinely do not get it, and I would be grateful if the Minister let me know why the amendment is here in this form. It is being added late to the Bill with no explanatory note and, because there is no explanatory note, it is open-ended.
Amendment 1 agreed to.
The Chair
With this it will be convenient to discuss amendment 189, in schedule 1, page 115, line 37, at end insert—
‘(13) A police and crime commissioner who becomes a fire and rescue authority is not permitted to privatise any part of the fire and rescue service.
(14) For the purposes of this Bill, privatisation is defined as—
(a) the transfer of ownership of the fire and rescue service to a private sector entity, or
(b) outsourcing of the authority’s frontline functions under this Act to a private sector company.”
This amendment, along with amendment 188, would prevent a PCC from privatising the part of the fire and rescue service which they assume control of.
Lyn Brown
I am disappointed that the Minister could not answer the basic questions arising from the previous group of amendments, and I would be grateful if he wrote to me and the rest of the Committee on that. I genuinely do not understand why amendment 8 was not included in the Bill as introduced, why it had to be an amendment and why, being an amendment, it is not covered by an explanatory note, which would have made it easier for us all to understand.
Amendments 188 and 189 seek cast-iron guarantees from the Government that the reforms are not a back door for privatisation of the fire and rescue service. The Minister may claim that I am being alarmist in raising the threat of privatisation, but there is some evidence that the danger is real. In 2012, Cleveland fire and rescue service received funding from the Government’s mutual support programme to look into becoming a social enterprise. We argued at the time that that was a backdoor to privatisation, and we were right. At the moment, there are core tasks of firefighting that, by law, can be carried out only by an employee of a fire and rescue authority. The then fire Minister, the hon. Member for Great Yarmouth (Brandon Lewis), wrote to the Select Committee on Regulatory Reform stating that he wanted to change the law to
“enable fire and rescue authorities in England to contract out their full range of services to a suitable provider”.
Ostensibly, the measure was proposed to allow Cleveland fire and rescue service to become a social enterprise but, as we said at the time, the change in the law would have meant that there was nothing to stop fire and rescue authorities contracting out to other suitable providers. Profit-making firms would inevitably have followed, especially when we consider competition laws and the duties on authorities, such as that provided for by Government amendment 8, requiring them to seek best value for money. In fact, it makes me wonder why amendment 8 came so late.
The current Minister of State for Trade and Investment, Lord Maude, who was then Paymaster General, was unequivocal about the Government’s support. He also expressed hope that more fire and rescue services, and indeed more public services in other areas, would follow suit:
“If a fire brigade can spin itself out as a mutual business, it shows there are few no-go areas of public service where this innovative approach to delivery cannot reach.”
Few no-go areas of public service. A rare moment of clarity from a Minister.
In the face of opposition, the Government eventually got cold feet about turning Cleveland fire and rescue service into a social enterprise, but I have not forgotten their support and their attempts to change laws that prevent privatisation, nor have those working in the fire service. What reason do we have for thinking that the Government have since changed their intentions? Before the election, I spoke to independent consultants and experts about the future viability of the fire and rescue service. They told me that, under the Government’s spending plans, the fire service could only go on by adopting one of three reforms. They could entirely abandon the model of full-time professional firefighters, they could be consolidated into one centrally managed national service, or they could privatise the services to allow them to make a profit from those who can afford to pay for extra fire provision. Since the election, we have seen that the Government wish the fire service to reduce spending by a further £135 million by the end of the Parliament, so I ask the Minister, “Which is it?” I know it is not a national service, or a part-time fire service, even in our urban areas. So is it privatisation?
James Cleverly
I appreciate the hon. Lady’s giving way yet again; she is being generous with her time. Will she recognise that the contract that took the London fire brigade’s fleet and its maintenance into private ownership was signed under a Labour-run Administration in a Labour-run fire authority, using exactly the model that she claims would prevent such problems occurring? If she is willing to concede those points, will she also concede that proposing the structures she does as a defence against badly drafted contracts is no defence at all?
Lyn Brown
No, no, I do not need that, but I happily accept that the contracts I have spoken of came under a Labour Administration.
We all benefit from full and proper mitigation of the dangers posed by fire, flooding and other natural disasters. If a factory is ablaze, it is not just the factory owner and the workers who benefit from a swift response, but all the people in surrounding buildings who do not see the fire spread. It follows that we put all that at risk when provision of fire services moves away from the desire to increase resilience and mitigate risk.
If resources are diverted away from unprofitable and risky objectives into covering profitable but comparatively less risky objectives, we all suffer and are slightly less safe. Make no mistake: if and when a fire service is allowed to be run for profit, that is what may well happen. Businesses with big pockets but relatively low fire risks will divert resources away from where they are really needed. We cannot allow that to happen. The principle that protection from the risk of fire is a public good and a universal public interest is what makes privatising the fire and rescue service a fundamentally bad idea.
When the Government abandoned their plans for back-door privatisation in Cleveland, the then Secretary of State for Communities and Local Government offered what was, to be fair, an unequivocal commitment to prevent privatisation of fire and rescue services in future. This is what he said:
“Let me be absolutely clear. We will make no move, directly or indirectly, that involves the privatisation of the fire service. It is not our intention, nor will we allow, private firms to run the fire service.”
I invite the Minister to make a similar unequivocal statement today. In fairness, I have asked him to do so before, but I feel that he has ducked the question. If he does it again today, I put it to him that people have every right to be worried that the reforms are intended to be a pathway to back-door privatisation, especially if he rejects our amendments ruling out front-line privatisation.
If the reforms are intended as a back door to the privatisation of the fire and rescue service, that is a disaster. Privatisation is not in the interests of public safety, it is not popular and when it has been tried, it has failed. No wonder the Government would not contemplate privatising the service in the open. I hope that they do not try to get there covertly. I am looking for an absolutely clear statement that this Government will not allow privatisation.
Mike Penning
Let me make it clear that there are no plans to change the legislation to enable privatisation of the fire service—end of story. I completely agree with what the Secretary of State said. Hopefully, the scaremongering can now cease. However, I say to the shadow Minister that there are measures restricting what work can be done by our fire services that is presently being done by the private sector. I am looking very carefully at them, because I am not happy with them.
Going back all those years to when I was a young fireman, one thing that I used to do was fire prevention officer work. We would go out and do inspections of care homes and old people’s homes. We had a relationship. Let me give the Committee an example of what happened in my own constituency. I got a phone call from the warden of a residential home saying that some of the residents were in tears and very upset because the fire brigade had been there to do an inspection and had told them they had to remove their mats, all the pictures from the corridor and their plastic flowers from the windowsills. Why would the fire service do that? I shot over there and said, “I have no idea why the fire service would dream of doing such a thing,” because personally, as an ex-fireman, I could not see the risk. “Let me ask the chief constable.” The chief constable wrote back to me and said, “It’s a private company doing it for the local authorities. We can’t bid for that work, because we are not allowed to show that we make a profit from it.” That is not privatisation of the fire service; it is doing work at cost so that the private sector does not scare people in my constituency. That is one reason why I am considering the measures carefully.
To give another example, I went into the workshops in Hampshire; they have some fantastic workshops. They are not allowed to bid for work from local government agencies, because they are not allowed to make a profit. I do not think that the shadow Minister does not want those facilities to be used in the right sort of way, but I categorically reject the need for this change, because there are no plans to change the legislation, which is not in this legislation. For instance, a firefighter has a right of entry. That right is reserved to firefighters. That cannot be done. The police have rights and the fire service has rights. That is in statute.
I say, very respectfully, that we should just nip this in the bud here and now. I cannot be any more adamant. Actually, perhaps I could go a little bit further: I would not be the fire Minister should we privatise the fire service. I would not do that job. And there is no plan.
Lyn Brown
I do not care whether there is a need for it or not. I do not understand why the Minister will not accept it. I will push it to a vote, but I would be really grateful if he came back with a form of words that were his own and that he felt made this position absolutely clear in the Bill.
Mike Penning
I could not have been any more explicit. I do not think any Minister ever has been more explicit about the lack of a need for an amendment, because the legislation is not even here to allow that to happen. So why would I accept an amendment that is on a false premise? That is why not. I suggest the hon. Lady pushes the amendment to a vote—let the Committee decide.
Lyn Brown
The Minister understands where this is coming from, because he understands what fissures were rocketed through the fire service community when the whole Cleveland debate was happening, and when his own Ministers were talking so expansively about how this would be a jolly good thing.
The Chair
For the sake of getting the procedure right, I understand that the hon. Lady wants to have a Division on amendment 189, in which case she will now have to withdraw amendment 188.
Lyn Brown
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 2, in schedule 1, page 114, line 37, after “such” insert “other”.
See the explanatory statement for amendment 1.
Amendment 3, in schedule 1, page 115, line 37, at end insert—
“4DA Requirement for authority created by section 4A order to have fire fund
(1) Each fire and rescue authority created by an order under section 4A must keep a fund to be known as the fire fund.
(2) All of the receipts of a fire and rescue authority created by an order under section 4A must be paid into the relevant fire fund.
(3) All of the expenditure of a fire and rescue authority created by an order under section 4A must be paid out of the relevant fire fund.
(4) A fire and rescue authority created by an order under section 4A must keep accounts of payments made into or out of the relevant fire fund.
(5) Subsections (2) and (3) are subject to the provisions of—
(a) the scheme established under section 26 of the Fire Services Act 1947 (Firemen’s Pension Scheme) (as continued in force by order under section 36),
(b) a scheme under section 34 (pensions etc), or
(c) scheme regulations within the meaning of the Public Service Pensions Act 2013.
(6) In this section “relevant fire fund”, in relation to a fire and rescue authority created by an order under section 4A, means the fire fund which that authority keeps.”—(Mike Penning.)
This amendment requires a fire and rescue authority created by an order under new section 4A of the Fire and Rescue Services Act 2004 to keep a fire fund and to pay receipts into and expenditure out of that fund.
Amendment proposed: 189, in schedule 1, page 115, line 37, at end insert—
“(13) A police and crime commissioner who becomes a fire and rescue authority is not permitted to privatise any part of the fire and rescue service.
(14) For the purposes of this Bill, privatisation is defined as—
(a) the transfer of ownership of the fire and rescue service to a private sector entity, or
(b) outsourcing of the authority’s frontline functions under this Act to a private sector company.”—(Lyn Brown.)
This amendment, along with amendment 188, would prevent a PCC from privatising the part of the fire and rescue service which they assume control of.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss amendment 176, in schedule 1, page 121, line 17, leave out paragraph 10.
This amendment will retain the prohibition on employing police staff to carry out any of the functions of the Fire and Rescue Service.
Lyn Brown
The Bill contains three models of PCCs managing the fire and rescue service. Amendments 175 and 176 would remove the single-employer model.
A large proportion of the work carried out by the fire service is preventive work. In 2013-14, fire and rescue authorities and partner organisations undertook more than 672,196 home fire safety checks—10% fewer than in 2012-13. When this preventive work is done, smoke alarms are checked, sprinklers are fitted and homes are made safer. As we heard earlier in the Committee, fire staff also perform public health functions, such as conducting temperature checks for the elderly and referring on vulnerable people who welcome them into their homes to public bodies that can help them. This preventive work is not an add-on to the fire service’s work; it is at the core of what it does.
We need to be honest: there are some people who would not welcome a policeman into their homes without a warrant. Police officers are enforcers. It can be scary having them turn up on the doorstep, and we often fear the worst. There are fears that, under the single-employer model, it may be more difficult for the fire service to carry out its vital preventive work if a member of the public is concerned that the firefighter coming into their home might have to share information with or report back to their boss, the police. This is not an attack on the police—mine in West Ham are great—but we have to recognise that there is a fundamental difference between the humanitarian service that the fire and rescue service provides and the law enforcement service provided by the police. In order for the public to allow firefighters into their homes for preventive checks, trust in the fire service has to be at a level that is, quite simply, not paralleled in the police force.
There is also the issue of workers in the police force and the fire and rescue service enjoying different terms and conditions of employment, not least on the right to strike. There are legitimate fears that the single-employer model will be used as a means of cutting back on the workers’ rights of those in the fire service. Furthermore, I am genuinely concerned that this model may lead to privatisation in the fire and rescue service. I know that the Minister is going to get grumpy with me, but I gently say to him that Ministers come and go, and although I would like to see him in his job forever—well, until I get there, of course—we need to make sure that we protect the fire service from encroaching privatisation.
There will be a duty on the chief constable to ensure that he is getting good value for money from the functions relating to the fire and rescue services that are conferred on the chief constable. That is sufficiently ambiguous—a bit like the Conservative party manifesto in this area—as to be interpreted as empowering the chief constable to find an alternative provider if they think they can get better value for money.
I urge the Minister to accept our amendments. The single-employer model is a danger to the independence of the fire service and is raising concerns that these changes are more about slashing workers’ rights and privatising the public service than the public good. The single-employer model may undermine the trust between the fire and rescue service and the public, making vital preventive work more difficult. There is also concern that this part of the Bill might lead to privatisation through the back door.
Mike Penning
I beg the Committee’s pardon, but I shall not respond to the comments on privatisation again; I have addressed them and we are where we need to be.
If I accepted amendment 75, it would remove a key advantage of the Bill: the ability of local areas to realise the benefits of the single-employer model where the local case is made. In doing so, it would restrict the options available to local areas in driving further collaboration between the police force and fire services. It would destroy a key part of the Bill.
Although the shadow Minister seems to think that I will be the Minister for ever such a long time, that is not the case, because I am an old man. It is imperative that we keep the three options as they are. The key to the Bill is giving the options for collaboration. The single-employer model is vital to that. I therefore urge the shadow Minister to withdraw her amendment. Otherwise, we will have to vote it down.
Lyn Brown
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 6, in schedule 1, page 118, line 1, after “(7)” insert
“Subject to subsections (7A) to (7C),”
This amendment and amendment 7 apply where fire and rescue functions are delegated to a chief constable by an order under new section 4F of the Fire and Rescue Services Act 2004. They require the police force’s chief finance officer to be responsible for the proper administration of financial affairs relating to those functions and enable other employees to be responsible for financial affairs relating both to fire and to policing.
Amendment 7, in schedule 1, page 118, line 5, at end insert—
‘(7A) Where an order under section 4F is in force in relation to the chief constable of the police force for a police area, the person who is for the time being the police force’s chief finance officer is to be responsible for the proper administration of financial affairs relating to the exercise of functions delegated to the chief constable under the order.
(7B) Subsection (7) does not prevent a person who is employed as a finance officer for fire functions from being at the same time employed as a finance officer for police functions.
(7C) In subsection (7B)—
“finance officer for fire functions” means a member of a chief constable’s fire and rescue staff who—
(a) is not a chief finance officer of the kind mentioned in subsection (7A), and
(b) is employed to carry out duties relating to the proper administration of financial affairs relating to the exercise of functions delegated to the chief constable under an order under section 4F;
“finance officer for police functions” means a member of a chief constable’s civilian staff within the meaning of the Police Reform and Social Responsibility Act 2011 who—
(a) is not a chief finance officer of the kind mentioned in subsection (7A), and
(b) is employed to carry out duties relating to the proper administration of a police force’s financial affairs.”
See the explanatory statement for amendment 6.
Amendment 8, in schedule 1, page 118, line 45, at end insert—
‘( ) The chief constable must secure that good value for money is obtained in exercising—
(a) functions which are delegated under the order, and
(b) functions relating to fire and rescue services which are conferred on the chief constable by or by virtue of any enactment.
( ) The chief constable must secure that persons exercising functions delegated by the chief constable under the order obtain good value for money in exercising those functions.”
This amendment places a duty on a chief constable to whom functions are delegated under an order under new section 4F of the Fire and Rescue Services Act 2004 to secure good value for money in the exercise of the chief constable’s fire and rescue functions.
Amendment 9, in schedule 1, page 118, line 48, leave out “and” and insert—
“() secure the exercise of the duties relating to fire and rescue services which are imposed on the chief constable by or by virtue of any enactment,”
This amendment and amendments 10 and 11 ensure that a fire and rescue authority created by an order under new section 4A of the Fire and Rescue Services Act 2004 may scrutinise the exercise of fire and rescue functions conferred on a chief constable by any enactment as well as functions delegated to the chief constable under an order under new section 4F of that Act.
Amendment 10, in schedule 1, page 119, line 2, at end insert “, and
() secure that functions relating to fire and rescue services which are conferred or imposed on the chief constable by or by virtue of any enactment are exercised efficiently and effectively.”
See the explanatory statement for amendment 9.
Amendment 11, in schedule 1, page 119, line 4, leave out
“the functions which are delegated under the order”
and insert “such functions”.
See the explanatory statement for amendment 9.
Amendment 104, in schedule 1, page 120, line 11, at end insert—
In section 5A (powers of certain fire and rescue authorities) in subsection (3) (authorities to which powers apply)—
(a) omit the “or” at the end of paragraph (c), and
(b) at the end of paragraph (d) insert “, or
(e) created by an order under section 4A.””
This amendment and amendment 105 make provision for the general powers of fire and rescue authorities in section 5A of the Fire and Rescue Services Act 2004 to apply to a fire and rescue authority created by an order under new section 4A of that Act.
Amendment 105, in schedule 1, page 120, leave out lines 13 to 27.—(Mike Penning.)
See the explanatory statement for amendment 104.
Amendment proposed: 178, in schedule 1, page 123, line 17, at end insert—
‘(4) An order under section 4A, where modified or not by the Secretary of State, may only be made with either: consent of the relevant local authority and relevant fire and rescue authority, or a majority vote by local people through referendum.”—(Lyn Brown.)
This amendment would ensure that a PCC can only take over a Fire and Rescue Service with the approval of local people or their local representatives.
Question put, That the amendment be made.
Lyn Brown
I beg to move amendment 185, in clause 7, page 6, line 16, after “functions”, insert
“, with the decision of the monitoring officer in that authority being final in the event of a dispute on fire related business,”
This amendment would empower the monitoring officer to deal with any disputes in county or unitary fire and rescue authorities about what matters a police and crime commissioner could vote on.
As drafted, the Bill fails to deal with any disputes in county or unitary fire and rescue authorities about what matters a police and crime commissioner should be able to vote upon. Amendment 185 would remove any ambiguity and empower the relevant monitoring officer to rule on any disputes. This is a dead simple amendment, and I would be really surprised if the Minister did not accept it.
Clause 7 would allow a police and crime commissioner to attend, speak and vote at meetings of county or unitary fire and rescue authorities where the business relates to the functions of the council as a fire and rescue authority. This is the so-called representation model: PCCs have a role in the governance of fire and rescue services. In the case of the 15 county fire and rescue authorities—such as Cumbria, Gloucestershire, Northamptonshire and Suffolk, as well as the case of Cornwall—that means they could attend full council meetings when business relating to the functions of the fire and rescue authority was being discussed.
For some items of business, it will be easy to decide whether the business relates to the function of the fire and rescue authority, and therefore whether the PCC is able to speak and vote on it. However, there is a danger that a PCC may use his or her voting rights on fire matters to proliferate their influence throughout local government. Even if they do not wish to do so, there is plenty of scope for dispute about what voting and speaking rights they have. A PCC could potentially make the case that almost any area of business relates to the fire service. Planning could have an effect on response times. Should a PCC be able to speak and vote, therefore, on all matters relating to planning? The fire service clearly has a role to play in any local government public health strategy. Does that empower a PCC to speak on any matter pertaining to public health?
At council budget-setting meetings in February each year, councils discuss their whole budgets. One may decide to invest more in adult social care and less in the fire and rescue service as part of a balanced budget package. During the meeting, the council will vote on whether to agree the overall budget proposals. The PCC may not wish to see reductions in the fire and rescue service budget. Is the PCC entitled to vote on the budget as a whole? That would have implications for who gets social care, the safeguarding of children, waste disposal and even road repairs.
It is not sensible for us in Westminster to try to answer such questions legislatively. They are better answered locally by those who intimately understand how their council works. Our amendment would give the local authority’s monitoring officer the final adjudicating authority in county or unitary fire and rescue authorities about what matters the police and crime commissioner can and cannot vote on. They will do so by weighing up what business relates to the functions of the council as a fire and rescue authority. I look forward with much interest to what the Minister has to say about our excellent amendment.
Mike Penning
If clause 7 were not in the Bill, I would expect the shadow Minister to introduce it. The clause provides for PCCs to request to be represented on the fire and rescue authorities where they do not take responsibility for governance of the fire and rescue service. Where such a request is accepted, PCCs would have full voting rights to ensure that they take part in the business of the fire and rescue authority in a meaningful and effective way. Where the county or unitary FRAs do not have a dedicated committee for fire, the Bill provides for the PCCs’ ability to attend, speak and vote to be restricted to matters relating to the functions of a fire and rescue service authority, and local appointing committees to consider how these arrangements work in practice.
Lyn Brown
I am grateful to the Minister for his clarification. I am happy to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 ordered to stand part of the Bill.
Clause 8
The London Fire Commissioner
Question proposed, That the clause stand part of the Bill.
Lyn Brown
We support the reforms to the governance of the London fire brigade. I will not oppose the clause, but I will speak with some sadness about why we have come to support the abolition of the London Fire and Emergency Planning Authority.
It is fair to say that the effectiveness of the authority has been hampered by the London Mayor and his use of direction. He has repeatedly used direction to overturn the democratic decisions of the fire authority members. The power of direction was intended to be used only in exceptional circumstances; unfortunately, the Mayor has used it almost routinely. He has made more than a dozen formal directions, including to secure the biggest cuts to the London fire brigade in its 150 years, closing 10 fire stations, losing 552 firefighters’ posts and axing 14 fire engines. Alternative proposals would have meant that stations did not need to close, but despite nine out of 10 of those taking part in a public consultation being opposed to the closures, the Mayor prevailed.
The Mayor did not stop there. Fire authority members have a duty to sell former fire stations for the best consideration, but they were unable to sell them, for example, for key worker or social housing. I understand that the Mayor then intervened in the sales process, trying to sell former fire stations to the Education Funding Agency for free schools at lower than the market price. The Mayor’s involvement even politicised the process to recruit a replacement commissioner for the London fire brigade. Traditionally, there has been cross-party consensus on the approach to take, but now the whole recruitment process has been deferred until after the election this May, in effect creating a two-year hiatus. There are more examples, but the point is clear: Labour supports the clause and the abolition of the London Fire and Emergency Planning Authority because the Mayor has made the existing arrangements untenable through disregard of the views of other elected representatives.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Schedule 2
The London Fire Commissioner
Mike Penning
I beg to move amendment 27, in schedule 2, page 132, line 36, at end insert—
“In section 21 (disqualification from being the Mayor or an Assembly member) after subsection (1) insert—
‘(1A) Subsection (1)(a) does not prevent a person appointed under section 67(1)(b) as the Deputy Mayor for Fire, or appointed under section 67(1)(b) and designated as the Deputy Mayor for Fire, from being elected as or being an Assembly member.’”
This amendment has the effect that a person who is appointed or designated by the Mayor of London as the Deputy Mayor for Fire may be elected as, or may continue to be, a member of the London Assembly.
Lyn Brown
I beg to move amendment 187, in schedule 2, page 132, line 39, at end insert—
“(2A) Amend section 38 (delegation) as follows—
(a) in subsection (2) (persons to whom functions exercisable by the Mayor may be delegated) after paragraph (db) insert—
‘(de) London Fire Commissioner;’.
(3) In subsection (7) (power to exercise delegated functions where no existing power to do so) after paragraph (bb) insert—
‘(bc) London Fire Commissioner,’.
(4) After subsection (8B) (further delegation, and Mayor’s power to continue to exercise delegated functions) insert—
‘(8C) An authorisation given by the Mayor under subsection (1) above to the London Fire Commissioner in relation to a function does not prevent the Mayor from exercising the function.’”.
This amendment would delegate the GLA’s general power to do anything which it considers will further the promotion of economic development and wealth creation, social development to the improvement of the environment in Greater London to the London Fire Commissioner. This is in line with the powers delegated to MOPAC.
The Chair
With this it will be convenient to discuss amendment 186, in schedule 2, page 139, line 21, after “Commissioner” insert—
“on all matters relevant to the London Fire Commissioner.”
This amendment would ensure that the fire and emergency planning committee would have the power to scrutinise the entire remit of the London Fire Commissioner.
Lyn Brown
Amendment 186 would expand the remit of the fire and emergency planning committee, which is the body that the Bill will create to scrutinise the performance of the London Mayor, the deputy mayor for fire and the London fire commissioner on fire matters. Amendment 187 would slightly expand the role of the London fire commissioner by giving him or her equivalent delegated powers over economic development and the environment to those held by the Mayor’s Office for Policing and Crime.
I tabled amendment 186 because the Bill envisages a very narrow remit for the fire and emergency planning committee. Under the Government’s proposals, the committee will be able to look only at fire matters. That does not acknowledge the changing nature of the fire service in London, which, like brigades up and down the country, is increasingly playing a role in resilience and flooding issues as part of its day-to-day role. For example, we recently saw the London fire brigade take a lead on Exercise Unified Response, which brought together key stakeholders in the capital to test their ability to deal with a large-scale building collapse.
In the last month, the London fire brigade has launched a co-responding trial in four boroughs in the capital—Merton, Lambeth, Wandsworth and, happily, the amazing borough of Newham—as part of the national joint council’s workstream on the 21st-century firefighter. If the trial is a success, the new committee will want to scrutinise closer working with the ambulance service in London to promote accountability and good-quality service delivery.
Given the changing role of the fire service and the greater collaboration we are likely to see in the capital, we propose that the committee should be able to investigate and consider all matters relevant to the London fire commissioner. That would ensure that the London Assembly’s scrutiny was as robust as it could be and allow members of the committee to cover everything from prevention and community safety to closer working with the other emergency services and local authority partners.
The Government and the Opposition support greater collaboration between the emergency services. We need to ensure that where that collaboration takes place, there is not a gap in the scrutiny of our public services, with the various scrutiny bodies staring at each other and wondering whether the projects fall under their remit. I hope that the Minister will take this opportunity to clarify his plans on how we will deal with those situations, both in London and elsewhere in the country.
Amendment 187 would ensure that the London fire commissioner had the delegated powers he needs to use the fire service to help Londoners. Section 30 of the Greater London Authority Act 1999 gives a general power to the GLA to do anything it considers will further any one or more of its principal purposes—namely,
“promoting economic development and wealth creation in Greater London; promoting social development in Greater London; and promoting the improvement of the environment in Greater London.”
The Mayor has the ability to delegate those powers to MOPAC, which is the equivalent office to the London fire commissioner, but for policing. That enables the police to engage in any work that they think is for the good of London.
Allowing the Mayor to delegate those powers to the London fire commissioner would mean that the London fire brigade could do the same. It is really important that we accept the amendment for two reasons, and I reckon that the Minister can find it in his heart to give Londoners what they want. First, all of us want to see all of our emergency services working together to serve their communities. That is the spirit behind the duty to collaborate, and it is the spirit behind this amendment. Secondly, it is important that we accept the amendment so as to formally recognise the parity of esteem that fire has with the police service, which is something I have tried to talk about this afternoon—I think I have managed to get Government Members to understand that that is what I am attempting to do.
There is no reason to think that the London fire brigade is not just as capable of finding innovative ways to serve and aid Londoners as the Metropolitan police. To do that, its commissioners require equivalent powers. I look forward with interest to what the Minister has to say, with great hope that he will accept our amendments.
Mike Penning
As always, the shadow Minister has put her amendments forward in good faith. In respect of amendment 187, however, I think that she is slightly misguided about the current powers. The London Fire and Emergency Planning Authority does not have the GLA’s general powers delegated to it, and nor does the Mayor’s Office for Policing and Crime. On that basis, I could not bring that across to the London fire commissioner, as I think she understands.
On amendment 186, under proposed new section 327I(3), which will be inserted into the Greater London Authority Act 1999 by schedule 2, the fire and emergency committee will be able to scrutinise any actions, decisions or matters relating to the functions of the London fire commissioner and any officer of the London fire commissioner. The powers are already in the legislation, and surely we do not need more legislation.
Lyn Brown
On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 28, in schedule 2, page 133, line 3, after “4” insert—
“( ) Section 60A (confirmation hearings etc for certain appointments by the Mayor) is amended as follows.”.
This amendment and amendments 29 and 30 ensure that the provisions for confirmation hearings in the Greater London Authority Act 1999 apply where a person is appointed as a member of the staff of the Greater London Authority by the Mayor of London and is later designated by the Mayor as the Deputy Mayor for Fire.
Amendment 29, in schedule 2, page 133, line 3, leave out from “In” to “applies” in line 4 and insert
“subsection (3) (offices to which section 60A”.
See the explanatory statement for amendment 28.
Amendment 30, in schedule 2, page 133, line 11, at end insert—
“( ) After subsection (4) insert—
(4A) This section also applies in any case where the Mayor proposes to designate as the Deputy Mayor for Fire a person appointed under section 67(1)(b).
(4B) References in section 327H and Schedule 4A to appointment of a person as the Deputy Mayor for Fire (however expressed) include such a designation.”.
See the explanatory statement for amendment 28.
Amendment 31, in schedule 2, page 133, line 21, leave out “(see section 327F)” and insert
“, or appointed under section 67(1)(b) and designated as the Deputy Mayor for Fire,”.
This amendment and amendment 32 ensure that a person who is appointed as a member of the staff of the Greater London Authority by the Mayor of London, and later designated by the Mayor as the Deputy Mayor for Fire, may be elected as a member of the London Assembly.
Amendment 32, in schedule 2, page 133, line 26, leave out from “Fire” to “from” in line 27 and insert
“, or
( ) a person appointed under section 67(1)(b) and designated as the Deputy Mayor for Fire,”.
See the explanatory statement for amendment 31.
Amendment 111, in schedule 2, page 145, line 23, after “Commissioner” insert
“but only for the purposes of section 138B”.
This amendment has the effect that certain provisions of the Local Government Act 1972 about religious observance do not apply to the London Fire Commissioner, as they can only apply to a body which has meetings of its members.
Amendment 112, in schedule 2, page 148, line 37, at end insert—
“( ) for ‘, a combined authority established under section 103 of that Act’ substitute ‘and a combined authority established under section 103 of that Act’,”.
This amendment and amendments 113 to 116 replace the consequential amendments to insert references to the London Fire Commissioner into the Housing Associations Act 1985 with amendments to remove existing references to the London Fire and Emergency Planning Authority from that Act. This is because the provisions to which the amendments relate apply only to Wales.
Amendment 113, in schedule 2, page 148, line 38, for “for” substitute “omit”.
See the explanatory statement for amendment 112.
Amendment 114, in schedule 2, page 148, line 39, leave out “substitute ‘and the London Fire Commissioner’”.
See the explanatory statement for amendment 112.
Amendment 115, in schedule 2, page 148, line 40, for “for” substitute “omit”.
See the explanatory statement for amendment 112.
Amendment 116, in schedule 2, page 148, line 41, leave out “substitute ‘the London Fire Commissioner’”.
See the explanatory statement for amendment 112.
Amendment 117, in schedule 2, page 149, line 38, at end insert—
“In section 1(9) (meaning of politically restricted post under a local authority) for ‘and every member of staff of a fire and rescue authority created by an order under section 4A of the Fire and Rescue Services Act 2004’ (as inserted by paragraph 12AN of Schedule1) substitute ‘every member of staff of a fire and rescue authority created by an order under section 4A of the Fire and Rescue Services Act 2004 and every member of staff of the London Fire Commissioner’.”
This amendment brings staff of the London Fire Commissioner within the definition of persons holding a politically restricted post under a local authority in section 1 of the Local Government and Housing Act 1989 for the purposes of the provisions on disqualification and political restriction in that section.
Amendment 118, in schedule 2, page 150, line 3, leave out from “after” to “insert” in line 4 and insert
“paragraph (aa) (as inserted by paragraph 12AO(2) of Schedule1)”.
This amendment and amendments 119 to 126 make modifications to the amendments to the Local Government and Housing Act 1989 in Schedule 2 to the Bill to take account of the amendments to that Act to be inserted into Schedule 1 by amendment 106.
Amendment 119, in schedule 2, page 150, line 7, leave out “(5)” and insert
“(5B) (as inserted by paragraph 12AO(3) of Schedule1)”.
See the explanatory statement for amendment 118.
Amendment 120, in schedule 2, page 150, line 12, leave out first “an elected local policing body” and insert
“a fire and rescue authority created by an order under section 4A of the Fire and Rescue Services Act 2004’ (as inserted by paragraph 12AO(4) of Schedule1)”.
See the explanatory statement for amendment 118.
Amendment 121, in schedule 2, page 150, line 12, leave out second “an elected local policing body” and insert
“a fire and rescue authority created by an order under section 4A of the Fire and Rescue Services Act 2004”.
See the explanatory statement for amendment 118.
Amendment 122, in schedule 2, page 150, line 16, leave out from “after” to “insert” in line 17 and insert
“paragraph (aa) (as inserted by paragraph 12AP(2) of Schedule1)”.
See the explanatory statement for amendment 118.
Amendment 123, in schedule 2, page 150, line 20, leave out from “sub-paragraph” to “insert” in line 21 and insert
“(ia) (as inserted by paragraph 12AP(3) of Schedule1)”.
See the explanatory statement for amendment 118.
Amendment 124, in schedule 2, page 150, line 26, leave out first “an elected local policing body” and insert
“a fire and rescue authority created by an order under section 4A of the Fire and Rescue Services Act 2004’ (as inserted by paragraph 12AP(4) of Schedule1)”.
See the explanatory statement for amendment 118.
Amendment 125, in schedule 2, page 150, line 26, leave out second “an elected local policing body” and insert
“a fire and rescue authority created by an order under section 4A of the Fire and Rescue Services Act 2004”.
See the explanatory statement for amendment 118.
Amendment 126, in schedule 2, page 150, line 31, leave out “(1)” and insert
“(1B) (as inserted by paragraph 12AQ of Schedule1)”.
See the explanatory statement for amendment 118.
Amendment 127, in schedule 2, page 150, line 39, at end insert “, and
( ) section 10 (limit on paid leave for local authority duties).”
This amendment applies the provisions on limits on paid leave for local authority duties in section 10 of the Local Government and Housing Act 1989 to employees of the London Fire Commissioner.
Amendment 33, in schedule 2, page 153, line 32, leave out from “authority’)” to end of line 34 and insert
“omit paragraph (g) (the London Fire and Emergency Planning Authority).”.
This amendment has the effect that a reference to the London Fire and Emergency Planning Authority is removed from section 27 of the Localism Act 2011 rather than being replaced with a reference to the London Fire Commissioner. Section 27 concerns the conduct of members of a relevant authority, but as a corporation sole the London Fire Commissioner will not have members.
Amendment 34, in schedule 2, page 154, line 13, after “120” insert—
“(1) The Local Audit and Accountability Act 2014 is amended as follows.”.
This amendment and amendments 35 and 36 apply paragraph 5(7) of Schedule 7 to the Local Audit and Accountability Act 2014 to the London Fire Commissioner. The effect is that the requirement to consider a report or recommendation of a local auditor at a meeting is replaced with a requirement for the Commissioner to consider the report or recommendation.
Amendment 35, in schedule 2, page 154, line 13, leave out
“of the Local Audit and Accountability Act 2014”.
See the explanatory statement for amendment 34.
Amendment 36, in schedule 2, page 154, line 16, at end insert—
“( ) In Schedule 7 (reports and recommendations by local auditor) in paragraph 5(7) (duty of certain authorities to consider report or recommendation) (as amended by paragraph 25 of Schedule 1) for ‘or a fire and rescue authority created by an order under section 4A of the Fire and Rescue Services Act 2004’ substitute ‘, a fire and rescue authority created by an order under section 4A of the Fire and Rescue Services Act 2004 or the London Fire Commissioner’.”—(Mike Penning.)
See the explanatory statement for amendment 34.
Schedule 2, as amended, agreed to.
Clause 9 ordered to stand part of the Bill.
Clause 10
Local policing bodies: functions in relation to complaints
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)
It is a pleasure to serve under your chairmanship, Mr Howarth, although it has taken quite some time today for me to have the chance to say that. I am delighted that the hon. Member for West Ham will now get a bit of a break, because she has been working exceptionally hard today.
For the benefit of the Committee, I propose to say a few words about part 2 of the Bill. I do not propose to make further comments on clause stand part, but I will of course address any comments about the amendments.
Policing and Crime Bill (First sitting)
Lyn Brown Excerpts(8 years, 2 months ago)
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Lyn Brown
Q Do you believe that under a single employer arrangement the discrepancy between a firefighter’s right to strike and the ban on police officers taking strike action might be a source of friction? Secondly, there is a duty of collaboration in the first part of the Bill. Do you know of a situation where any of your colleagues have refused to collaborate under the current system?
Chief Superintendent Thomas: I will try to be as brief as I can—I will bear in mind the hint on the timescales. In terms of the first question, there are significant cultural differences between the fire service and the police service. You only have to see the learning on collaboration between forces, let alone with other emergency services—Her Majesty’s inspectorate of constabulary has commented on it several times. We must not underestimate the power of cultural differences in this. There are dynamics of a heavily unionised service coming to join up with a service that is not unionised, particularly under the single employment model.
In answer to your second question, I am not necessarily sure about the language around refusing to collaborate. I have already articulated one reason for it and there are many other reasons as well, such as, for instance: single funding; annual funding, which does not give any longevity in terms of planning; and misaligned geography in terms of coterminosity. Two forces exist that are not coterminous to the Fire Brigades Union: Avon and Somerset constabulary and Devon and Cornwall police. You have a fire service that crosses over those two force areas. That does present some challenges itself.
Lyn Brown
You do not agree with it, then.
Steve White: The police service and, indeed, my members—the 124,000 people who I represent—recognise and value the expertise that the fire service brings, and we work incredibly well together at the scenes of many, many incidents and operations; of that there is absolutely no doubt. Provided that that separation of professional responsibility remains, I do not necessarily think that there is an issue. We have sympathy with some of the issues in relation to the fire service. I am sure that they have similar concerns for issues that we have. I am sure we would continue to work very closely together, so I do not necessarily see it as a massive issue. Of course, when we had the police service escorting green goddesses—I experienced this through disputes years ago—it was because of strike action, but even so, I think the fire service recognised the limits and capabilities of the police service. We just have to be pragmatic, deal with it and be professional in dealing with it.
In relation to collaboration, let us be brutally frank: collaboration between police forces and other agencies is not working as efficiently as it should. It is absolutely true that that is the case. Sometimes it is cultural. Sometimes it is managerial. Sometimes it is about egos. Sometimes it is political. There needs to be a locus to ensure that collaboration within the police service and across other agencies happens as effectively and efficiently as possible. Indeed, there have been many instances where my members have been working within collaborative organisations and have seen the frustrations—why are there three different annual leave policies for three forces that are collaborating on specialist operations? They have to go to three different resource units to take time off. Our members can see that it is not working as well as it should.
I am not saying that people have refused to collaborate; I am just saying that from a cultural perspective, there is still quite a lot that needs to happen. There is an opportunity for a central locus to say, “No. You need to collaborate under this framework and get on with it.”
Ben Priestley: The issue of industrial action is maybe not as important as some might initially think. Forty per cent. of the police workforce can join a trade union. It is a reasonably unionised workforce. Over half the workforce is in a trade union, and there has not been a history or a tradition of industrial action. That, I think, is testimony to the good quality of employment relations and the negotiating machinery that we have. Whichever service we are thinking about, it is the quality of the industrial relations that determines whether there are industrial disputes or not. As the saying goes, it takes two to tango, and very often industrial disputes are an indication of a failure of the system, rather than any in-built problem with the fact that certain workers have a right to strike.
In relation to the broader concept within the Bill of a single employer, once we begin to unpack that, there is an awful lot in it that will have to be dealt with and that will involve police services, and potentially fire and rescue services, in a huge amount of work—for what end? It brings together four or five different negotiating bodies under one or maybe two or more employers. The Bill is unclear whether the police and crime commissioner will be the single employer, whether he or she can delegate to the chief constable and whether the chief constable can then delegate to another individual within his or her force. That part of the Bill hopefully can be examined properly in Committee, and we certainly would like to put evidence up at that stage to help the MPs on the Committee to understand some of the complexities around the single employer model.
In relation to the duty to collaborate, I think the Government supported the establishment of the emergency services collaboration working group, which reported last year. I am sure the Committee will want to have a look at its report, which said that in about 90% or 95% of cases, collaboration was already happening. It is difficult for us to say exactly what the quality of that collaboration was, but most of the respondents to that survey said they were entirely happy with the level of collaboration. The group showed and said in its report that the jury was out on whether collaboration was actually going to save money. The Government make some fairly steep claims in relation to what collaboration will or will not do in respect of saving money and efficiencies. There is no actual evidence at this stage that collaboration will save money. The Committee might want to gain further insight into that as part of its deliberations.
Chief Superintendent Thomas: I will add an observation and a couple of quick points. In my mind, ultimately the question is whether this is good for the public and whether it delivers a service to the public. There are definitely opportunities within this for efficiencies, in terms of coterminosity around estate, procurement and fleet requirements and HR functions, for instance. There are definitely opportunities for efficiencies there. There are already examples of that taking place in parts of the country, in force areas, with fire services.
I refer you to the HMIC report of July 2014 on meeting austerity. To reinforce my point about some of the challenges of this, that report referred particularly to the difficulties around collaboration. In preparation for this Committee hearing, I read Ken Knight’s review. That almost mirrored the language used, with there being exactly the same challenges within the fire service. We are overlaying another area of complexity on top of the challenges that Steve has just articulated, in terms of how we are trying to collaborate among ourselves. Ultimately, the terms “patchy” and “fragmented” are used in both reports. That demonstrates some significant challenges in terms of how we would actually make this happen.
Mims Davies (Eastleigh) (Con)
Q Have any benefits of collaboration actually been seen? I heard quite a negative picture, but were there any benefits that the panel could see?
Chief Superintendent Thomas: There have been benefits but, again, I refer back to my previous comment. To give you a slightly historic answer on this, going back to that report, HMIC recognised that collaboration in policing was patchy and fragmented, and in the way that we were approaching it at the moment it would not meet the demands of austerity. That is partly because there is a vacuum in terms of who makes that decision.
The Chair
Before anyone answers that, I shall bring Lyn Brown in on a similar point and we can take the two questions together.
Lyn Brown
Q I have heard of decent collaboration between fire services and between fire services and police services. The one thing they all had in common is that they wanted to do it and they found ways to do it, locally, that had benefited them. I think that asking people to collaborate willingly is a better methodology than trying to force a structure upon a police service. Do you agree?
Chief Superintendent Thomas: I agree with that point. My only other observation goes back to what I said earlier; ultimately, this is for the public good. The public can have a different experience in different areas, as in the example you just gave: you can have two chief executives, of the police service and the fire service, coming together in an effective relationship and making collaboration work, yet just down the road, across the county boundary, that has not happened. Is that the type of service we want, in terms of it being that diverse, across England and Wales?
Jake Berry
Could you answer my question?
Chief Superintendent Thomas: Do you mind repeating it?
Mims Davies
Q I want to touch on the opportunity, through the Bill and through secondary legislation, to change the rank structure. Is that a welcome opportunity?
The Chair
First, I should thank people for taking the time and trouble to appear before the Committee today. We very much appreciate the wisdom that we hope you will be able to bring to our proceedings.
Lyn Brown
Q May I ask you what effect you think transferring governance to police and crime commissioners would have on the fire service? Do you fear that PCCs will seek to raise funds via the privatisation of fire services, should governance be transferred? Do you know of any colleagues refusing to collaborate under the current system, which would need a swingeing power to place them under PCCs at the behest of the Home Secretary?
Matt Wrack: We have made our views clear: we do not support the shift in governance of fire to PCCs. There are a whole number of risks in that. We think there is no appetite within the fire and rescue service for it, and there is no public appetite for it. As was touched on in the earlier session, it begins seriously to blur the lines between the role of the fire and rescue service and the role of the police service, and the people who perform those roles. We have grave concerns about that.
On privatisation, the first concern is that this is seen widely among those within the fire and rescue service as a takeover. The police service is clearly far larger in terms of personnel, resources and so on. Fire is a much smaller public service. Nevertheless, fire has a unique reputation among our communities. Among firefighters, this will be seen as a takeover. We are concerned, in terms of the funding squeeze, that the area of the two services that would come under the greatest pressure as a result of such takeovers is fire.
On collaboration, I want to make a number of quick points that arose from the previous session. First, I think there is some confusion about different types of collaboration. Operational collaboration among fire services is built into the very fabric of the fire and rescue service. It happens every single day. For example, on the question about Wales, there will be border areas where Welsh fire stations attend daily predetermined attendances in English fire and rescue service areas. That happens on a much greater scale with major incidents and so on.
There is a huge amount of experience of collaboration over many years between fire and various agencies. We are concerned that one thing that is not being addressed in the discussion here is greater collaboration with local government. Fire is currently a local government service. We are concerned that there are very few councillors here. We do now have two councillors here, but they are from metropolitan authorities. There are no councillors here to give the views of non-metropolitan fire services. A great deal of collaboration is going on in other areas, such as the fire service and the ambulance service, and the fire service and social services, but, again, there is nobody here from ambulance trusts to give evidence to the Bill Committee.
Chief Fire Officer Etheridge: From a Chief Fire Officers Association angle, the most important thing is that we fully welcome the move of fire into the Home Office. We think that that is the right thing to do for national resilience and national security, and we think that it will enhance the way in which the conversations can take place, at a very strategic level, about managing the risk to the UK. It is a very positive move.
On the governance issue regarding PCCs, CFOA’s position has been very clear: where there is a local need and a local business case, and where that will make a positive impact on efficiency, effectiveness and, most importantly, public safety, we feel it is entirely appropriate for there to be a conversation around the governance model that oversees the fire service. However, the most important thing is where that local case is made.
A patchwork of different governance structures sits over the whole UK, but it is a patchwork quilt that knits together well and operates effectively. The fire service is held in very high public esteem and we need to ensure that we can maintain that. To support what Matt from the Fire Brigades Union said, when it comes to operational delivery, we have a seamless approach of that blue light emergency delivery right across the UK. I absolutely believe that the emergency services in the UK are the best in the world.
The Chair
Q Does either Councillor Edwards or Councillor Hanratty want to say anything about the governance issue from the point of view of elected members?
Councillor Edwards: Certainly, we have no problem with collaboration. We collaborate all the time and we have been doing so for many years. The most recent example across the country is the national fire control collaborations that we have done after the national failure of the regional controls some time ago. There are many examples. As Matt said, every day the fire service collaborates with the police, the ambulance service and other services at emergency incidents. We have no problem at all with that and we are looking for better ways to collaborate all the time. The problem with a forced takeover of the governance of fire and rescue authorities is that it puts some of that collaboration in jeopardy. If we are going to be engaged in a prolonged discussion with a local PCC about a merger or a takeover—possibly a hostile takeover—it will detract from the collaborative efforts in which we are currently engaged. It will be a distraction.
An absolute concern of mine in the face of a hostile bid for the fire and rescue service is the impact on the neutrality of the fire service. We are not a law and order service. We have access to communities and individual residences where people welcome the fire service and will share a lot of information with us. We work with lots of disadvantaged young people and people who are sometimes on the edge of the criminal justice system and we bring them back into the mainstream. We would start to lose some of our impact in the event of a loss of our neutrality.
My other concern about a takeover is that, in the metropolitan area—I speak on behalf of the six mets—we are all engaged, in one way or another, in some form of devolution pathway. We are going to be in a situation next year, if we are not careful, where one part of government is telling the elected mayor that he should be looking at us and the other part is telling the PCC they should be looking at us. Our favoured route is with the combined authorities and the elected mayor—that is where we naturally fit as part of local government. We have done lots of work with our local councils in delivering a very wide health and wellbeing and prevention agenda. We have a lot in common with the police; we have a lot more in common with our local authorities and the health services. That is the track we are engaged on.
Councillor Hanratty: We have to be very careful what we wish for here. The PCCs were an experiment. We are still in the very early stages of the transition and how the PCC will work and operate. I think the police service has a lot to contend with in today’s society. When you look at the implications of the Bill on the police force, I think they just need to get on with the job. The fire and police services are unique. The fire service is very unique—we are the envy of the world. Why would you want to disrupt, disturb or disband that? We get through more thresholds than any other organisation in the public sector. The work is not just about saving lives; it is about changing lives. We have proved that time and time again. We are a very efficient and effective service and we need to get on with the job.
Regarding collaboration: we have been doing it on a daily basis for a number of years. I know the fire Minister is due to visit Merseyside and we will prove to him exactly the types of collaboration we are undertaking at the moment. It is not just with the police or the ambulance service; it is with the health service, local authorities and any other partner that will engage with us. We are at the forefront of looking at public services and how we can assist in reducing the overall burden on the health agenda. We can impact on that. We are doing a fantastic job. Why would you want to change it?
Amanda Milling
Q I just wonder how a fire authority with individuals who are appointed to it—they are not elected by members of the public—can possibly be as democratically accountable to the public as a police and crime commissioner whose name is on the ballot paper when it comes to the election.
Lyn Brown
Q I think we perhaps have forgotten in this room that, in many cases, the general public—the people who we serve—voted against there being mayors and one person who might have this kind of control. The issue around PCCs is that there are going to be elections in May without the public, who voted against the mayoral system, knowing that mayors are going to be responsible for PCCs. Do you think that that might equate to a democratic deficit?
Craig Whittaker
Q I have two questions, if I may. First, it was mentioned earlier that there was nobody here representing the ambulance service. However, I know that Phil Loach, as well as leading the West Midlands fire service, also sits as a governor for the West Midlands ambulance service. It was said earlier that a third of collaboration happens between fire and ambulance services; does that mean two thirds does not? I wonder if he could give us a view on that. Secondly, I want to go back to Matt Wrack’s earlier comment that a PCC takeover would be dangerous. Do you all agree?
Emergency Services: Closer Working
Lyn Brown Excerpts(8 years, 3 months ago)
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Richard Fuller
That is right, but sometimes there is no will; what is the way then? PCCs are democratically elected figures, and they have a responsibility to the people who elected them to maintain their range of services. The proposals in the legislation are not clear about how that will be managed. It would be helpful to hear that from the Minister, because it will not apply to the vast majority of places across the United Kingdom. The number of places affected is small, but they are important. The people of Devon, Cornwall and Somerset will want to know the Government’s intentions, because in a few weeks’ time, they will be voting for someone who may well have that responsibility if Parliament passes the legislation.
I would like to make a few points about PCCs, starting with finance. All Members of Parliament will be aware that chief constables have made the case for a number of years now about the financial pressure involved in maintaining the desired levels of policing. Many of us on the Government Benches have pressed chief constables and others to look for savings and, sometimes reluctantly and sometimes positively, they have engaged with us. Guess what? Effective policing can be delivered with lower budgets. Who would have thought that possible? However, there is admittedly still pressure across the board on public and police financing, which is why my right hon. Friend the Chancellor was right to maintain police budgets in the autumn statement.
I am sure that we all look forward to that maintenance of funding, but I was concerned, not for the first time, by comments made by the police and crime commissioner in my county of Bedfordshire. Just last Sunday, the Bedfordshire on Sunday led with a story headlined, “Takeover threat for fire service”. It began:
“‘Help us with our funding or be taken over’, is the warning to the fire service from the county’s cop boss.”
The PCC may well be jumping the gun, because he does not have those powers yet, but I think that many of us would be alarmed to hear such an aggressive statement from a PCC who might be given responsibility for the fire service. The fire service is not a piggy bank for police and crime commissioners to raid for their budgets.
Richard Fuller
The PCC ought to know, and have responsibility for knowing, that he must—
Richard Fuller
I am not sure whether the shadow Minister was speaking out in support of the PCC raiding fire service budgets. Perhaps she was; perhaps that is new news. Who would have known? Perhaps she would like to clarify.
Lyn Brown
I am grateful to the hon. Gentleman for allowing me to clarify, and I congratulate him on securing this debate and on the tenor of his contributions. I was merely agreeing with his suggestion that some PCCs may well see the fire service as a piggy bank from which to fund the police service, and I wonder whether that was the Minister’s intention.
Richard Fuller
I am grateful to the shadow Minister, who came to my constituency last year just before the general election. She was very welcome in Bedford. The issue is not so much that some PCCs may be incapable of managing their budget effectively and who therefore think that this is an opportunity to take money from our firefighters—as the Bedfordshire PCC appears to think—but that they should not be permitted to do so. On that, I think she and I agree. We want to ensure that the funding for our fire service cannot be raided by PCCs such as the one for Bedfordshire, who wishes to get his hands on it.
Lyn Brown (West Ham) (Lab)
It is a genuine pleasure to serve under your chairmanship, Mr Bone. We have had an excellent, well-informed debate and hon. Members have made many good points.
Labour supports close collaboration among the emergency services, but we fear that these proposals come with significant risks and are being carried out in a cavalier fashion. The consultation exercise that preceded the proposals gives us the distinct impression that the Government decided that they would make radical changes before they spoke to the key stakeholders. In any serious consultation, stakeholders would be asked what they think of the substance of the proposals. Instead, they were merely asked to comment on the process by which PCCs will gain control of their local fire service, not on whether the process has any merit, and they were asked a litany of leading questions.
The proposed process by which a PCC takes control of a fire service is rather authoritarian. Although they must seek agreement from the local fire authority, if agreement is not forthcoming the matter will be arbitrated by the Home Secretary, who will decide whether a change is
“in the interests of economy, efficiency and effectiveness or public safety”.
That is a recipe for hostile takeovers.
Ian Lavery
In Northumberland, the police and crime commissioner was opposed to further integration with other blue light operations. Will my hon. Friend comment on the position there?
Lyn Brown
That one passed me by, but I will come to Northumberland and have a conversation about it. I am sure the Minister has an answer.
The Government are ignoring the advice of the 2013 Knight review. When Sir Ken Knight considered expanding the role of PCCs, he recommended that, if such a policy were pursued, it ought to be trialled through a pilot, rather than be rolled out immediately. Why did the Government choose categorically to ignore that key recommendation?
I fear that these proposals carry a number of serious risks, and I worry about the continuation of the successful, locally driven collaborations that have been talked about at length in recent years and have saved lives. When I was shadow Fire Minister, I visited a number of fire services, including Northumberland’s, and I heard of collaborations with ambulance services. I was particularly impressed by the Lincolnshire fire and rescue service and the East Midlands ambulance service, which ensured a swift, comprehensive service to isolated parts of the county. Firefighters responded to medical emergencies and took patients to hospital if they could do so more quickly than the ambulance. It really did save lives; it was an exceptionally good collaboration.
Only yesterday, we heard that the ambulance service has missed its targets six months in a row. Our paramedics work hard, but they cannot be everywhere at once. Our fire and ambulance services recognise that, and they work side by side to be part of the solution. What will happen to such innovations in the brave new world of combined police and fire services? Will PCCs be charged to continue that work, or will it simply fall by the wayside? What guarantees do communities have that such innovations, which are important to them, will be top of PCCs’ agendas?
To save money and be more efficient and effective, local services successfully share back office functions. A good example is the North West Fire Control project, which set up a single control centre for services in Cumbria, Lancashire and Greater Manchester. It works really well. What will happen to such collaborations? Will those services be disaggregated? I do not know. Perhaps the Minister does. I worry that there is a danger that such locally driven projects will be crowded out as energy is spent on responding to an agenda that has been dreamt up in Whitehall.
I also worry that dismantling the existing structures of accountability will cause a democratic deficit. The next PCC elections are in May, and the major political parties have already selected most of their candidates. Does the Minister expect the candidates to detail in their manifestos their intentions about fire services? Should that be a central issue in the election debates? I gently say that I do not believe that the Home Secretary or the Minister expect the fire service to be a central plank in the PCC elections. Is that not worrying in itself? It is as though the Government see the fire service as a secondary concern to policing.
Peter Murphy, director of public policy and management research at Nottingham Business School at Nottingham Trent University, said that
“if the current plans are implemented there is a very strong chance that the fire and rescue services would go back to the ‘benign neglect’ that characterised the service from 1974 to 2001 when the Home Office was last responsible for fire services. Police, civil disobedience, immigration and criminal justice dominated the Home Office agenda, as well as its time and resources.”
If the fire service becomes the lesser partner in a merged service,
“the long-term implications will include smaller fire crews with fewer appliances and older equipment arriving at incidents. Prevention and protection work, already significantly falling, will result in fewer school visits and fire alarm checks for the elderly, not to mention the effect on business, as insurance costs rise because of increased risks to buildings and premises.”
I think his assessment is right. There is a real danger that fire will become an unloved, secondary concern of management—a Cinderella service. Perhaps the Minister can tell us how he will ensure that the service is improved, that we invest in the best equipment and training, that vulnerable people continue to have fire alarm checks and that schools are visited and children educated.
I want to ask a basic question about reorganisation. The Government appear to assume that it will be easy for fire and rescue services to reorganise to suit the PCCs’ boundaries, but to talk simply about transferring responsibility from a local authority belies the complexity of the situation. Fire budgets are very integrated in some councils to ensure the efficiency and effectiveness of the service, so it will be difficult to unravel them, as has been shown by previous attempted mergers of fire services. Has any work been done to assess the complexity? What conclusions has the Minister come to about the difficulties he might encounter? What concerns have county and metropolitan councils raised with him about disaggregating budgets and the effect on important emergency services?
Finally, on funding, fire and rescue services have already had to reduce spending by 12% over the course of the last Parliament, which is a cumulative cash cut of some £236 million, and further projected reductions are to come. When I met some fire services, I was told that their service would not be viable in future as a result of the cuts. That is the reality of the tough financial context in which PCCs are being asked to take on fire services.
There are alarming signs that the front-line service is beginning to suffer. Response times are creeping upwards. As the Minister knows full well, every second counts when people are stuck in a car wreck or a burning building. What risk analysis has the Home Office done to ascertain how PCCs will be able to reduce fire spending without increasing response times and reducing resilience and safety? I ask him to publish that risk assessment so that we can all evaluate it. It is not as if police forces have spare money to pass to the fire service, as we heard in the effective speech by the hon. Member for Portsmouth South (Mrs Drummond). They are still absorbing cuts of 25% to their funding from the last Parliament and face further real-term cuts. They have done amazingly well in such tough circumstances, but one has to wonder whether PCCs are happy that the Government are handing them another Whitehall-imposed funding crisis to deal with. Again, does the Minister expect PCCs to cover the shortfall in funding by introducing privatisation into the fire and rescue frontline? The last time I asked that question, the Minister shook his head but offered no verbal or recordable assurances whatsoever. Will he allow PCCs to end the full-time professional fire service or to sell it off bit by bit? What assurances can he give the House that those paths will not be followed? What control will remain in Whitehall to ensure that our fire services are not privatised or sold?
In conclusion, we genuinely support closer and more effective working between the emergency services, which we have seen work really well, but we have serious concerns about the inherent risk in the Government’s proposals. If the Minister is convinced that they are the way forward, he should publish a risk assessment and be confident that a rigorous pilot will demonstrate their merits. Until he commits to that, I feel that the risks involved are too great and pose too much of a threat to our communities for us to be able to support the proposals.
Merseyside Fire and Rescue Service
Lyn Brown Excerpts(8 years, 3 months ago)
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Lyn Brown (West Ham) (Lab)
As we have heard, and as the figures that I have show, the Merseyside service faces a 41% cut in the support it will get from the Government over the next five years. It is calculated that that means it is likely to shrivel from 962 firefighters in 2011 to 564 in 2020, almost halving its firefighting workforce. Fire engines have been depleted from 42 to 28—it is possible that another 10 engines are to go—and four of Merseyside’s 26 stations have closed, with another eight under threat. It is a really dramatic cut in front-line services by anybody’s measures.
My hon. Friend the Member for Wirral West (Margaret Greenwood) made an excellent speech, supported by the other Merseyside MPs. She was absolutely right to bring the subject to the House’s attention and to seek to get the Government to understand, even at this very late stage, just what these cuts mean to our constituencies and constituents. It is not just Merseyside—other fire services have been hit hard, with a 15.6% reduction in the cash budgets of metropolitan services and a reduction of 5.9% for non-metropolitan services. As the National Audit Office has said:
“Spending power has fallen most in areas assessed by the Department as having highest levels of…need.”
There are likely to be more incidents in areas of the highest need, as the Minister knows only too well. It is in the cities—in poorer metropolitan areas just like Merseyside—that fires are most likely to happen and to cause the most damage. Spending forecasts show that the trend is likely to continue. According to the House of Commons Library, metropolitan services are going to lose more spending power than combined county services, which means that services such as Merseyside’s will continue to face the toughest cash squeeze. Where is the risk-based allocation that used to inform Government spending on fire services?
Since 2010, our fire and rescue service has had to deal with year-on-year cuts totalling an estimated £236 million—about 22.5% of its overall Government funding—and a further 8.8% this year alone. That has led to real reductions on the frontline. We have 5,000 fewer firefighters in England than we had in 2010. I travelled around the country earlier this year—I was the shadow Fire Minister prior to the election—and I talked to people at both metropolitan and non-metropolitan services. Some of them told me that their services would not be viable in the future. Those words chilled me, as they should chill the Minister.
Those who see logic in slashing fire budgets seem to believe that as there are now fewer fires it is safe to have a depleted fire service, but that argument is utterly specious. It completely disregards other important services that firefighters provide in key areas such as flood fighting, terrorism and others that we have heard about today. As my hon. Friend the Member for Wirral West said, a key factor in the smaller number of fires is the 670,000 home fire safety checks that the fire service carries out every year. Since 2004, when the checks began in earnest, the proportion of homes with fire alarms has increased from 74% to 88%. Those checks save lives as well as preventing fires—double the number of fatalities happen when a fire occurs in a building without a smoke alarm. To cut the fire service because the number of fire incidents has been reduced successfully, saving lives in the process, would be like cutting the number of mammograms because the number of deaths from breast cancer is going down. It is complete madness.
We should therefore be in no doubt that the cuts faced by services such as Merseyside will put the public at greater risk. Indeed, as we heard earlier, the independent consultants Greenstreet Berman suggest that by 2020, slower response times nationally—they are now at their worst level for 20 years—could lead to more than 100 additional deaths a year. The cuts may well lead to the Government failing in their first duty: to keep the public safe.
Fire deaths in Merseyside have already increased over the past five years of cuts. I know we are dealing with small numbers at the local level, so I do not want to talk about percentages because they can be totally misleading, but the trend concerns me deeply, as it should concern the Minister.
The funding cuts faced by the Merseyside fire service and other beleaguered services are all the more difficult to manage because the Government have consistently shown little or no leadership on the future of fire services. Now, however, after a long period of inertia, the Government are suggesting a patchwork, top-down reorganisation. They are effectively proposing to put fire services under police and crime commissioners, or to place the police on the boards of fire services to be part of their management. They are also suggesting a single employer.
There is real concern that all that will mean that the fire service becomes subsidiary to the police and ceases to be a statutory service in its own right, and that the fire service will be the one to see the reductions in budget and staffing—no longer two equal services working side by side for the public good, but one subordinate to another. Where PCCs take over, what guarantees do the public have that fire budgets will be maintained? Merseyside has a right to ask for that, and for an unequivocal assurance from the Minister that this top-down proposal will not be used to introduce privatisation.
The reorganisation is, I assume, to save money. Why, oh why did the Minister not look to Wales or Scotland to work out how a reorganisation could be done to save money and yet protect the frontline? Was it simply a “not invented here” reaction, or something more nefarious? As the shadow Fire Minister before the election, I thought hard about what an incoming Labour Government could do to save money, in Merseyside and elsewhere, and protect the frontline. I consulted experts, and they told me that there were only three ways to work within the Tory-Liberal Democrat spending plans: merge the service into one; volunteerise the whole service; or privatise it. Which of those options is today’s announcement moving us towards—a service staffed completely by volunteers or a privatised service?
As the Minister knows, firefighters run into danger when the rest of us are running away. They are professional and work with determination and expertise to protect us all from the most appalling risks. They should be valued and listened to, not ignored. The Minister knows that better than anyone, and I urge him to take stock of the funding on Merseyside and in all the other areas of the country that are struggling to make massive reductions.
The Minister must respond to the impressive and passionate case that Merseyside MPs have made today about fire service funding, and not fob them off with some fairy tale about reorganisation providing more money for the frontline. Budget reductions and his suggestions for mergers with the PCCs put him in danger of creating a Cinderella service. That fairy tale ended happily, but today, sadly, I see no Prince Charming on the horizon.
Psychoactive Substances Bill [Lords]
Lyn Brown Excerpts(8 years, 4 months ago)
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Madam Deputy Speaker (Natascha Engel)
With this it will be convenient to discuss the following:
New clause 3—Control of cannabis—
‘(1) Within six months of the passing of this Act, the Secretary of State shall consult the Advisory Council on the Misuse of Drugs pursuant to the Misuse of Drugs Act 1971 with regard to the use of her powers to make regulations under sections 7, 10, 22 and 31 of that Act to—
(a) delete from Schedule 1 to the Misuse of Drugs Regulations 2001 the substances listed in subsection (2), and
(b) add those substances to Schedule 2 to the 2001 Regulations.
(2) The substances referred to in subsection (1) are—
(a) cannabis, and
(b) cannabis resin.”
The intention of this amendment is to re-schedule Cannabis from a Schedule 1 drug to a Schedule 2 drug for the purposes of promoting research into its medical use.
New clause 4—Referral to Advisory Council on the Misuse of Drugs—
‘(1) The Ministers shall refer to the Advisory Council on the Misuse of Drugs (ACMD) any substance which is, or may be, a psychoactive substance.
(2) The ACMD shall advise the Ministers whether the substance is, or appears to the ACMD likely to be, misused and of which the misuse is having, or appears to the ACMD to be capable of having, harmful effects sufficient to constitute a social problem.
(3) For the purposes of this section, “the Ministers” has the same meaning as in section 1(4) of the Misuse of Drugs Act 1971 (The Advisory Council on the Misuse of Drugs).”
New clause 5—Review of the Misuse of Drugs Act 1971—
‘(1) The Secretary of State shall commission an independent evidence-based review of—
(a) the effectiveness of the Misuse of Drugs Act 1971 in reducing the harm caused by the misuse of drugs, including social problems connected with their misuse, and
(b) the implementation of the Act.
(2) The Secretary of State shall lay a copy of a report of the review before both Houses of Parliament within one year of the passing of this Act.”
New clause 6—Possession of controlled drugs—
‘(1) The Misuse of Drugs Act 1971 is amended as follows.
(2) Omit section 5(1) and (2).
(3) After section 5 insert—
“5A Measures in respect of possession of controlled drugs for personal use
(1) Where a person is detained on suspicion of having committed an arrestable offence and is found to be in possession of a controlled drug, falling within Schedule 2 (Class A drugs) in circumstances which do not constitute an offence under section 3 (restriction of importation and exportation of controlled drugs) or section 4 (restriction of production and supply of controlled drugs), a senior officer or a local authority may require the person to attend a drug treatment programme or drug awareness programme.
(2) The Secretary of State shall by regulations define “drug treatment programme” and “drug awareness programme” for the purposes of this Act.
(3) Regulations made under this section must be made by statutory instrument.
(4) A statutory instrument under this section may not be made unless a draft of the instrument has been laid before, and approved by resolution of, both Houses of Parliament.””
Amendment 23, in clause 1, page 1, line 3, after “about” insert “reviewing the Misuse of Drugs Act 1971 and”
Amendment 24, page 1, line 11, at end insert—
‘(6A) Section [Control of Cannabis] provides for legal possession and supply of cannabis prescribed by a doctor.”
Amendment 18, in clause 2, page 1, line 14, after “any” insert “novel”
Amendment 19, page 1, line 15, leave out paragraph (a) and insert—
“(a) in the opinion of the Advisory Council on the Misuse of Drugs is capable of producing a psychoactive effect in a person who consumes it, and
(aa) is, or appears to the Advisory Council on the Misuse of Drugs likely to be, misused and of which the misuse is having, or appears to them capable of having, harmful effects sufficient to constitute a social problem, and”
Amendment 12, page 1, line 16, leave out “and” and insert—
“(aa) is not prohibited by the United Nations Drug Conventions of 1961 and 1971, or by the Misuse of Drugs Act 1971, but which may pose a public health threat comparable to that posed by substances listed in these conventions, and”
This amendment to the definition includes part of the alternative definition of psychoactive substances proposed to the Home Affairs Select Committee by the Advisory Council on the Misuse of Drugs.
Amendment 20, in clause 3, page 2, line 12, at end insert—
‘(2A) The Advisory Council on the Misuse of Drugs shall propose to the Secretary of State the amendment of Schedule 1 for the purposes of subsection (2)(a) if they consider that a substance does not have, or is not capable of having, harmful effects sufficient to constitute a social problem.”
Amendment 21, in clause 5, page 3, line 9, at end insert—
‘(2A) It shall be a defence that the person did not supply the substance for gain (whether direct or indirect).”
Amendment 13, page 3, line 15, at end insert—
‘(5) It is not an offence under this section for a person (“A”) to supply a psychoactive substance to person (“B”), where A and B are known to each other and such supply is part of an agreement to obtain psychoactive substances for either A’s, B’s or both’s own consumption and the supply does not profit person A.”
This amendment avoids one person being criminalised when, as part of a group, he is responsible for obtaining psychoactive substances for the group where, in effect, each person in the group is purchasing for their own consumption.
Amendment 14, in clause 8, page 4, line 38, leave out paragraph (i)
This amendment seeks to exclude from criminalisation those who order psychoactive substances over the internet for personal consumption.
Amendment 22, page 5, line 19, at end insert—
‘(5A) It shall be a defence that the person imported the substance for his own consumption.”
Amendment 15, in clause 10, page 6, line 22, at end insert—
‘(3) In sentencing, the court shall take account of the relative harm associated with the psychoactive substance that was the subject of the offence.”
This amendment seeks to ensure that sentencing is commensurate with the potential harm done by the substance involved.
Amendment 4, in clause 58, page 36, line 25, at end insert—
‘(2A) The report must inform Parliament on progress made in improving education and awareness about new psychoactive substances.”
This amendment requires the Secretary of State to include a section on progress in NPS education in their statutory review.
Amendment 25, in schedule 1, page 40, line 5, at end insert
“except to the extent necessary to give effect to section (Possession of controlled drugs).”
Amendment 1, page 41, line 12, at end insert—
“Racetams
8 Pramiracetam
9 Oxiracetam
10 N-phenylacetyl-L-prolylglycine ethyl ester
11 Phenylpiracetam
12 Nefiracetam
Cholinergics
13 L-Alpha glycerylphosphorylcholine
14 Citicoline
15 Meclofenoxate
Miscellaneous
16 L-Theanine
17 Oxitriptan
18 Tongkat Ali
19 Resveratol
20 Trans-resveratol
21 Sulbutiamine”
This amendment exempts a number of substances from scope of the regulation regime introduced in the Psychoactive Substances Bill. The substances in this amendment are commonly used to improve individuals’ cognitive performance and have been found to have positive effects in a number of academic studies.
Amendment 5, page 41, line 12, at end insert—
“Miscellaneous
8 Alkyl nitrites”
This would exempt “poppers” from the Bill, as recommended by the Home Affairs Select Committee.
Government amendment 10.
Lyn Brown
Both amendment 4 and new clause 1 deal with the key issue of drugs education and awareness. This Bill contains provisions to disrupt the supply of new psychoactive substances, but they will not be effective without action to reduce demand. What we need is a coherent and comprehensive education and awareness strategy to go alongside this Bill.
Amendment 4 would place a duty on the Secretary of State to update Parliament on the progress made by the Government in improving education and awareness of new psychoactive substances. The Bill requires the Secretary of State to bring a progress review before Parliament. Our amendment prescribes that this review should contain information about education and awareness, too.
Nick Thomas-Symonds (Torfaen) (Lab)
At the end of last year I visited St Alban’s RC high school in my constituency, my old school, and saw there at first hand the kind of educational work that was being done on so-called legal highs. Does my hon. Friend agree that that is precisely the kind of approach we need?
Lyn Brown
I thank my hon. Friend for making that point. Wales has a very impressive education programme, and I will come to that later in my contribution.
New clause 1 seeks to amend the Education Act 2002 to make personal, social, health and economic education include a focus on drugs and new psychoactive substances. It should be a foundation subject in any national curriculum. The Government’s drug education strategy contains some warm words about providing good quality education and advice so that young people and their parents are provided with credible information on actively resisting substance misuse, but these warm words are not, and were not, acted upon. The coalition Government reversed Labour’s plans to make PSHE a statutory requirement, despite that being recommended in the review carried out by Sir Alasdair Macdonald. They closed the drugs education forum, a source of expertise on drugs education in England which disseminated information to teachers across the country. The forum was closed as part of a drastic cut in drugs education spending. According to the Department of Health, drugs education spending was reduced from £3.9 million in 2009-10 to around £500,000 in 2010-11.
Andrew Gwynne (Denton and Reddish) (Lab)
My hon. Friend is making an important point about the need for PSHE to include these measures. Given that Five Year Forward view set out by Simon Stevens for the national health service assumes £5 billion-worth of savings coming from prevention, is this not exactly the kind of prevention we should be promoting in our schools?
Lyn Brown
My hon. Friend is absolutely right. If I remember my facts rightly, the Government estimated that having a comprehensive drugs education would cost approximately £500 for every pupil in England and Wales. If we offset that against the average of nearly £1 million that would be spent on a person misusing substances over the course of their lifetime, we can see it can be cost-effective to provide decent, comprehensive drugs education and so stop us spending at the other end, on people misusing and abusing substances.
Statistics provided by Mentor UK, the drug and alcohol charity, demonstrate that this was a disastrous set of decisions by the Government. Some 60% of schools now teach drugs education for one hour or less per year, and 59% of pupils say they cannot remember having a drugs education lesson in the last year. Paul Tuohy, former chief executive of Mentor, has told a national newspaper:
“We are probably in the worst situation for drug education for decades.”
Where there is drugs education in our schools, the quality is questioned. Ofsted found that 40% of PSHE teaching was not good and needed to improve. A 2013 survey of teachers by the PSHE Association reported that 81% of respondents would like more classroom resources for drugs and alcohol education.
Lyn Brown
I am going to come to that later in my speech when I talk about Wales. Although there has not yet been a proper examination of the findings from the drugs programme that Wales has put into action, the initial findings appear to show that it has had some impact. If my hon. Friend will allow, I will continue with my—[Interruption.] Thank you: I will continue with my oration.
The evidence, including from the Government’s own inspectors, suggests that the Government’s approach to PSHE simply is not working. This failure has occurred at a time when the growth of the new psychoactive substances industry has started radically to alter the drugs situation in our country.
Moreover, parents want these changes. A National Union of Teachers survey suggests that around 88% of parents want PSHE to be compulsory. A 2011 survey conducted by Mumsnet showed that 98% of parents were happy for their children to attend PSHE lessons.
Jim Shannon (Strangford) (DUP)
While this legislation will go some towards addressing legal highs, there is still the issue of the purchase of legal highs online. Does the hon. Lady agree there is still much to do in relation to that?
Lyn Brown
I agree that there is much we can do to prevent the supply of, and demand for, these substances. This set of amendments is dealing with demand, and I feel that, unless we get across the message that these so-called legal highs are neither legal nor safe, the demand on the internet will become even greater. We need to get across the core message that the Government are sending through this Bill: these drugs are not legal and not safe. The demand on the internet needs to be curbed as well, which is why we need to make sure that we have proper education and information out there.
Teachers, parents and the Government’s own inspectors think we should have more and better drugs education, but it appears that the Government do not agree. In Wales, a Labour Government show us how successful an alternative approach can be. A £2 million investment in the all-Wales school liaison programme has made substance misuse education a core subject in 98% of Welsh primary and secondary schools. Almost all Welsh schoolchildren receive accurate, consistent and credible information about the potential harms of drugs, rather than having to rely on friends, myths, the internet and guesswork. The school programme is complemented by the Welsh emerging drugs and novel substance project, a new psychoactive substances information and harm reduction programme, as well as measures to educate parents. These are all part of a £50 million investment in reducing drugs harms.
There are signs that the Welsh approach is working. Drug deaths in Wales are down by 30% since 2010. By contrast, drug-related deaths have been creeping up in England. There was a 17% increase in the last year, and the Office for National Statistics states that they are now at the highest level since records began in 1993.
Too much of the drugs education in our schools is focused on providing information. Evidence suggests that to get drugs education right, it has to be taught alongside a focus on the life skills which empower young people to resist peer pressure and make informed decisions.
Steve Brine (Winchester) (Con)
It is good to hear from the hon. Lady again; I enjoyed listening to her in Committee. I agree with a lot of what she is saying, and nobody is suggesting the situation is perfect, but we have Mentor UK, the “Rise above” programme and the FRANK campaign, and I feel sure she will come on to say that while of course there is a role for the state and for education and health, there is also a role for parents. I am a parent of two young children, and I intend to educate them as well as I possibly can with the information I have about the dangers of psychoactive substances. Does the hon. Lady agree that that has got to be a key part of this?
Diana Johnson (Kingston upon Hull North) (Lab)
There are a lot of very responsible parents out there who will of course talk to their children about legal highs, and about building resilience and self-confidence so that they make the right decisions in their lives. We have to accept, however, that unfortunately many children do not have the advantages we would like them to have, so it is incumbent on us all to recognise that education within the school setting is another way of getting important messages across.
Lyn Brown
My hon. Friend is right indeed about that.
These life skills can be taught only by helping children think about the challenges and dangers they face. They need to understand that bullying is often a tool of the drug pusher, and that a consequence for people taking drugs from pushers is often that they will get into debt or be open to exploitation. When these messages are introduced in the classroom, they can result in conversations between young people and a real learning process rather than it all being a bit hit and miss, as my hon. Friend says, if this occurs out of school. We need information, values and context in order to deliver a quality drugs education. That is why drugs education belongs in the sort of comprehensive personal and social education that can be provided by PSHE, and not solely, as is happening so often, in science lessons. Unfortunately, the Government have consistently opposed making PSHE a foundation subject whenever the issue has been raised in this House.
There is reason to believe that education about new psychoactive substances is particularly bad. Research by the Royal Society for Public Health found that a quarter of young people aged between 16 and 24 believed that so-called “legal highs” were safer than illegal drugs. As we all know, that is a dangerous misunderstanding because some new psychoactive substances have been classified as class A drugs. It is little wonder that young people, and indeed older people, are confused when they are being bombarded with marketing tricks from drug pushers who tell them that these are safe and legal alternatives. Given the ingrained and damaging myths around new psychoactive substances, I find it astonishing that as of 2 June just £180,556 has been spent over three years on education programmes about these drugs.
New psychoactive substances education and awareness is not just about schools. That is why I have tabled amendment 4, which would place a statutory duty on the Home Secretary to include an update on progress in improving new psychoactive substances education and awareness in her statutory review. The amendment would focus minds at the Home Office and compel it to put in place the most effective and comprehensive awareness campaign possible.
The Welsh Assembly found that 57% of new psychoactive substances users used the media as their main source of information about these substances. Public relations and advertising campaigns therefore have a key role to play, particularly among adult groups where the Government cannot act as a direct provider of education as they do in schools. The Government’s own public awareness campaigns are limited to the FRANK website, which, regrettably, has almost no social media presence. In the absence of any Government action, the Angelus Foundation has been forced to run its own advertising campaigns, using fundraising and corporate donations in kind. I want to praise its work again, but I am sure it would acknowledge that these campaigns should be nationwide and comprehensive, and it simply cannot afford to do this itself. The job it is doing is the job that Government should be doing.
Mr David Burrowes (Enfield, Southgate) (Con)
I, too, very much commend the Angelus Foundation, which gave evidence to the Select Committee on Home Affairs and has been very important in establishing the case for more education. Is it not strange that the “FRANK” website and the information it provides are wholly separate from, and without any connection or link to, other great work being done, such as the films that are pushed through social media about awareness of new psychoactive substances? There is no collaboration; surely we need the Government to take a lead on that.
Lyn Brown
I say give the hon. Gentleman a job in the Home Office, because we would become much more effective if we put into practice what he has just suggested. In Committee, the Minister seemed to agree—I do not want to put words into his mouth—that FRANK was inadequate. He said:
“I put my hands up: ‘Talk to Frank’ is not perfect. We will work with everybody to try to ensure that “Talk to Frank” improves...the way in which it is feeding information is perhaps not as open or as direct as possible. Let us sort that now.”––[Official Report, Psychoactive Substances Public Bill Committee, 29 October 2015; c. 84.]
I encourage the Minister, in responding to the points I have raised, to respond to the point the hon. Member for Enfield, Southgate (Mr Burrowes) has just made and to give us some understanding of the progress that has been made in sorting it.
Mrs Cheryl Gillan (Chesham and Amersham) (Con)
The hon. Lady may not be aware that a very prominent anti-drugs campaigner in my constituency, Mary Brett, has always had a lot of problems with the FRANK website, particularly because of its emphasis on harm reduction. The feeling is that the website fails to really point out the dangers in a direct way that youngsters can understand. I therefore rise to support the hon. Lady in hoping that the Minister will re-examine this issue, because many very good campaigners with honestly held views think that FRANK is not good enough.
Lyn Brown
I thank the right hon. Lady for making that point. I know very little about drugs, apart from what I have learned hard over the past few months. I did not even know what poppers were when I first took on my brief—I had never heard of them; I thought they were the little things with the string that we had at parties. When I looked at the FRANK website it did not enlighten me that much. I needed something a bit more basic that would help to enlighten and educate me, and I therefore agree with the point she has made.
I urge the Minister to accept my amendment 4 and pledge to report to Parliament on the progress made in delivering the Government’s education strategy. It really is not a big ask and if the Government are serious about drugs education—I genuinely believe that the Minister for Policing, Crime and Criminal Justice is—they ought to be committed to monitoring this rigorously, at the very least. He claimed in his letter to the Bill Committee that the statutory review should focus on the operation of the legislation. I agree, but the operation of this legislation will not happen in a vacuum. He has repeatedly said that it must be complemented by a communication and awareness strategy. It therefore seems appropriate to me that a look at the “operation” of this legislation would include a substantive section on education and awareness, just to make sure that we are getting the messages out there and reducing demand.
I am sure the Minister will agree that we should be keen to review and evaluate the impact this legislation will have, and I am pleased there is provision in the Bill to ensure that that will happen. However, will he provide assurances that in the regular and annual collection of statistics about arrests, prosecutions, sentencing, offender management and treatment, information collected about substances covered by this legislation will not be subsumed into the similar data collected for drugs controlled under the Misuse of Drugs Act 1971? Similarly, will he confirm that surveys carried out by the Government on crime and public health will separate out the consideration of information about the Misuse of Drugs Act controlled drugs and of information about psychoactive substances? I raise that matter because it will be too easy simply to obscure the impact this legislation will have if the information is collapsed into the existing systems for collecting data about action taken on drugs controlled under the Misuse of Drugs Act.
I would also like the Minister to accept new clause 1—a girl can dream! The Government’s approach to PSHE simply is not working and we cannot stand by and let that happen when new psychoactive substances are bringing new dangers into our communities.
While I am on my feet, I will also speak to amendment 5, which, if passed, will add poppers to the list of exemptions to the ban on psychoactive substances. Poppers would then be treated like nicotine, alcohol and caffeine—substances that we know to be psychoactive, but do not feel it judicious to ban. We support the Bill because legislation is necessary to safeguard against the serious harms created by new psychoactive substances. Our concern to safeguard against harm is exactly why we believe that poppers should be exempt from the ban on psychoactive substances. In our judgment, fewer harms are likely to occur if poppers are added to the exemption list.
The Minister for Policing, Crime and Criminal Justice (Mike Penning)
I am conscious that this is an intervention and not a speech. Later on, when I have a chance to respond to the debate in the tone that has been used throughout the passage of this Bill, the shadow Minister will be pleased to hear that the ACMD will start the process. That is something that I have initiated in the past couple of days.
Crispin Blunt
On that point, whatever process the Government go through, it seems to be bordering on crazy to then ban these substances with a view to unbanning them in two or three months’ time. Does the hon. Lady agree, as I do, with the view of the Home Affairs Committee? I intend to support amendment 5.
Lyn Brown
I am grateful to the hon. Gentleman for his intervention, and, yes, I do agree with him. Despite this seemingly welcome movement by the Home Secretary, I am still minded to vote this afternoon to place poppers on the exempt list. I will do so, because I am fearful that placing a ban on such substances will push their use underground and away from the regulatory controls that currently exist. In short, we may do more harm by that action. If, after a review and further evidence, it is proven that poppers are harmful and that, on balance, a ban would be appropriate, Labour Members will willingly review and test the evidence and, if the case is proven, support a ban on these substances.
Andrew Gwynne
I agree with my hon. Friend’s approach to this matter, as it makes a lot of sense. The Government’s approach could create uncertainty and send out mixed messages not just to the gay community, but to the population at large.
Lyn Brown
My hon. Friend is absolutely right. Let us look at the context and the evidence. Poppers have been used recreationally in Britain for more than 30 years, and, in all that time, no Government—not one—have sought to ban them. The word “poppers” is used to describe a group of different chemical compounds, some of which carry more potential harms than others. They are a popular substance in some sections of the gay community because, I am told, they enhance sexual experience. The National AIDS Trust argues that amyl nitrite and butyl nitrite are relatively rare in Britain because they are regulated by the Medicines Act 1968 and by EU law. As a result of that regulatory regime, the most common compound of poppers in the UK is isopropyl nitrite, which is weaker and does not pose a significant health risk.
Steve Brine
I am glad that the hon. Lady has mentioned the National AIDS Trust. I have read its briefing on this matter today. Poppers have been around for a long time, but they are not controlled by the Misuse of Drugs Act. That is not because they are not harmless, but because they do not meet the very high threshold of that Act. We are debating this Bill now on the Floor of the House of Commons. If we are to bring in a blanket ban, which we have a successful manifesto commitment to do, we should understand that this is a psychoactive substance. Surely the Minister’s response to the Home Affairs Committee report suggests that he will do the research. As she knows, there is provision in clause 3 to enable something to be added to a schedule. Surely, therefore, we are doing this the right way round.
Lyn Brown
I do not think that we should be doing this the other way round. I will explain why as I go along. My feeling is that this Bill should be about harms. Poppers have not been controlled by any Government. They have been around for decades—I think they were created in the late 19th century. I understand that they were used by some Ministers to keep them going at the Dispatch Box, and that they were prescribed at the time by their doctors. The reality is that if we ban poppers now and then unban them in four months’ time, it would create confusion. It would be better to allow the current situation to continue. If the test of significant harm is proved, then we should ban them and take them off the exempt list. We will not have created any underground laboratories that make synthetic poppers and then sell them in nightclubs. We will not be causing the harm that we would if we did not put them on the exempt list today.
Mr David Davis (Haltemprice and Howden) (Con)
I wish to express a view that is opposite to that of my hon. Friend the Member for Winchester (Steve Brine). The simple truth is that if we ban something and then take it back again later, we bring the law into disrepute. There is nobody in this House who is fiercer than I am in terms of banning inappropriate substances, but this is the wrong way round. I agree with my hon. Friend the Member for Reigate (Crispin Blunt) that we should keep poppers off the banned list until we know the facts.
Lyn Brown
I absolutely agree with the right hon. Gentleman.
In giving evidence to the Home Affairs Committee Dr Owen Bowden-Jones, head clinician for the Club Drug Clinic, stated that
“as far as I can speak as a clinician, I do not think I have ever seen anybody come through”—
our clinic
“with harms related to poppers.”
Professor Iversen of the Advisory Council for the Misuse of Drugs said that he had not seen sufficient scientific evidence of harm in the case of poppers to justify a recommendation under the Misuse of Drugs Act, and that he was not aware of any growth in the use of poppers in the UK.
Mr Burrowes
Just to be fair-minded, while I also share concerns about poppers not being on the exempt list, I wish to make the point that Dr Owen Bowden-Jones also went on to say that there are associated harms. For example, we are now getting a link between poppers and eye damage. Again, this is very unpredictable. Perhaps the Government could respond to that.
Lyn Brown
Genuinely, if the evidence changes and we can see that there are significant harms, we should ban poppers. This is a bit like alcohol: when it is used excessively, it causes massive harm. As I understand it, the way that poppers are generally used, they do not create the kinds of harms that would require us to ban them. We genuinely believe that to ban them would cause more harm than it would solve.
Paul Flynn
Will my hon. Friend challenge the popular myth that, by banning a drug, we reduce its use? That has virtually never happened, and almost every time a previously legal substance is banned, its use increases. That happened with mephedrone and its use increased 300%. It is a complete myth to say that banning a drug will have such effect. What it is likely to do is replace a legal market with a criminal market, which is infinitely more harmful.
Andrew Gwynne
The situation is worse than that set out by my hon. Friend the Member for Newport West (Paul Flynn). What is likely to happen if we make poppers illegal is that a gay man who uses poppers to enhance sexual pleasure may well be tempted to go on the black market and use a Class A or Class B drug, which would increase the risk of unprotected sex and, as a consequence, sexually transmitted infections.
Mr David Davis
I apologise to the hon. Lady for intervening a second time, but I just want to ensure that we get the reference point for harm clear. I know almost as little about poppers as she does—I spent this morning reading about them on the web. They can sometimes cause fainting and minor cases of blood damage. Paracetamol can cause damage; it can be used for suicide. Aspirin can cause damage; one can die from duodenal bleeding as a result. Let us be clear about what damage means. On the face of it, poppers do not appear to be harmful drugs.
Lyn Brown
Again, I agree with the right hon. Gentleman. The Home Affairs Committee concluded that poppers ought to be exempt from the ban. I hope that the Committee’s Chair, who has been in his place for most of the debate, will inform the House of his views on the Home Secretary’s response to his Committee’s recommendations, because I will be listening with great interest.
Poppers are not a new drug that has recently appeared on the market and that we know nothing about. As I have said, they were first created in the 19th century, so they are not a new chemical compound that has been synthetically produced to mimic the effects of already banned substances. There is a good argument to be made that poppers are not only relatively harmless, but are not the sort of “new” psychoactive substance that the Bill is intended to deal with.
We feel that a ban on poppers, even for a short period, would in fact bring about harms; it would take the sale of poppers out of this successful regulatory regime and users might end up being pushed underground, where unscrupulous and unregulated sellers, who are in it for the profit, are more likely to provide harmful compounds and possibly drive users towards harder and more harmful drugs. If it is likely that the review will take between four and six months—it might be even longer—that means four to six months of confusion, potential prosecutions and a real danger of under-the-counter sales of poppers that will not be subject to the same regulation. Even a temporary ban would create a real danger of harm. Will the Minister therefore consider a temporary exemption for poppers until the MHRA and the ACMD report back?
I understand that the Government have told the National AIDS Trust that the fear that I have outlined is unfounded, as a similar ban in Ireland has not led to an increase in popper-related harms. However, the National AIDS Trust has been informed by the gay men’s health service in Ireland’s Health Service Executive that poppers are still openly sold in Ireland’s sex shops and saunas, effectively placing poppers on the exemption list. If that is the case, we would not expect to see any harms associated with pushing popper use underground in Ireland, because the poppers market is still, in effect, out in the open. It therefore cannot be inferred from the situation in Ireland that there would be no health harms as a result of a ban on poppers here in the UK.
Additionally, I fear that including poppers in the ban might undermine the Bill and make it far more difficult to get across the vital message that psychoactive substances can be, and often are, very dangerous. There is a risk that the Bill will become synonymous with a ban on poppers, a substance that is thought to be relatively harmless, and that as a result the public will come to believe that all the substances banned by the Bill are relatively harmless. That would be an absolute disaster, and it would completely undermine the important work that the Bill is seeking to do.
Finally, given that poppers are widely used but relatively harmless, we fear that enforcing a ban would waste scarce police resources. Enforcing this legislation will be difficult enough without disproportionate police time being spent on enforcing a ban on a relatively harmless drug. If in future any evidence to the contrary is produced, then poppers should be removed from the exempted list or controlled under the Misuse of Drugs Act 1971.
The Minister said in Committee that it would be sensible for the Government to take stock of the evidence presented about poppers so that the House could decide on Report. I urge him to place poppers on the exempt list until the MHRA and the ACMD have considered the evidence and reported back. I will be listening intently to what he has to say.
Several hon. Members rose—
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 2, in clause 6, page 3, line 19, leave out “or C” and insert “, C, D or E”.
Amendment 3, page 4, line 7, at end insert—
‘(9A) Condition D is that the offence was committed on or within 100 metres of a children’s home.
(9B) For the purposes of section (9A) “children’s home” has the same meaning as in section 1 of the Care Standards Act 2000.
(9C) Condition E is that the offender supplied a psychoactive substance to any persons who were under the age 18 when the offence was committed.’
Amendment 16, page 5, line 20, leave out clause 9.
This amendment would remove the specific offence of possession of a psychoactive substance in a custodial institution, while leaving in place the provisions that other offences—including possession with intent to supply—are aggravated if taking place in such institutions.
Amendment 17, in clause 10, page 6, line 5, leave out subsection (2).
This amendment seeks to remove the sentencing provisions associated with the offence in clause 9.
Government amendments 6 to 9 and 11.
Lyn Brown
In speaking to new clause 2, I praise the work of my hon. Friend the Member for Barrow and Furness (John Woodcock) and the Local Government Association.
The powers in new clause 2 are comparable to the closure powers for premises that serve alcohol under the Licensing Act 2003. The new clause will provide a helpful interim power for local authorities when premises notices have been ignored. I do not see why we should treat outlets that are suspected of ignoring warnings to stop selling psychoactive substances any more gently than those that are believed to be selling alcohol illegally.
Kit Malthouse (North West Hampshire) (Con)
I rise to speak to amendments 2 and 3, which stand in my name. They deal with one small anomaly in the Bill and one more fundamental issue.
It is accepted in the Bill that the selling of psychoactive substances to children is a heinous crime that should attract an aggravated sentence. The Bill contains the aggravating factor of selling psychoactive substances outside a school, which will attract a stiffer sentence. However, there is a group of children who are more vulnerable than those who go to school and that is those who live in children’s homes. I am therefore seeking to make it an offence to sell these substances outside a children’s home.
I understand that the Government are keen to rely on sentencing guidelines to bring in these measures. However, that raises the question of whether we should have any aggravating factors at all. These provisions mirror exactly those in the Misuse of Drugs Act 1971. As far as I can see, that is the only reason why children’s homes are excluded from the Bill. I ask the Minister to consider the logic of including selling these substances outside a children’s home alongside selling them outside a school.
The second issue is more fundamental. I am seeking to make it an aggravated offence to sell these substances to anybody under 18. The law for the protection of children in this country is patchy, old and confused. In particular, it does not privilege children as a group against whom committing a crime is particularly serious. We privilege lots of other groups, including those with a religious faith, those of particular ethnicities and those of a particular sexuality. If a crime is committed against those people because of who they are, it is more serious in sentencing terms. Children are not among that group.
My amendments therefore seek to make the sale of psychoactive substances to anybody under 18 a more serious offence in the eyes of a judge and one that attracts a stiffer sentence. I am doing this in the hope that when any future criminal justice or sentencing Bill appears, the House will do what it did in 2012, when it made the transgender community an aggravated feature, as it is called, which means that any offence that is committed against them because of their particular characteristics attracts a similar sentence. I hope that we will do the same for children in future legislation.
It is about time that we focused on some of the very old children’s legislation and brought it up to date. The first step in doing so is to send a signal to the courts and the public in general that we see children as a group that is worthy of special protection.
Lyn Brown
Labour’s 2015 manifesto included a commitment to ban the sale and distribution of dangerous psychoactive substances. We believe that a blanket ban, with listed exemptions, is the most effective means of beginning to tackle the serious public health problem these drugs have brought about. That is why Labour supports this Bill. We have not agreed with the Government on every detail of it, but we have been united in wanting the most effective legislation possible to tackle the scourge of these disruptive substances and to curb the criminal fraternity who are pushing them on our young people.
I am greatly disappointed that the Government have chosen not to place poppers on the exemptions list, as I believe that will undermine the Bill and place poppers users, particularly men who have sex with men, at greater risk of greater harm. Despite our support for the general approach of the Bill, I have made it clear that we do not think that this legislation alone will tackle the issue. Maryon Stewart, an amazing woman, said in May:
“No law can offer the perfect solution to protect people from drugs; it is equally vital we all concentrate our efforts on making the public, young people in particular, more aware of the harms of these substances in schools, at university and during festivals.”'
I could not agree more. Sadly, the Government do not seem to agree that a comprehensive education and awareness strategy needs to go alongside the measures contained in this Bill. That is truly the only way in which we will effectively reduce demand, and thereby make measures controlling supply easier and more effective.
I thank my hon. Friend the Member for Denton and Reddish (Andrew Gwynne) for working closely with me on this Bill. His insights into the public health aspects of the legislation have been invaluable and it has been a pleasure to work with him. I also thank the Minister for Policing, Crime and Criminal Justice, the right hon. Member for Hemel Hempstead (Mike Penning) for the spirit of co-operation he has shown throughout the passing of the Bill and for his humour. I also thank the Scottish National party Members, who have been great to work with. This has been the first Bill I have led on, and it has been good to have them alongside.
This legislation was introduced in the other place, and I want to pay tribute to the excellent work done by my Labour colleagues there, particularly Lord Rosser, who led on the Bill for Labour. My colleagues in the other place were instrumental in improving the Bill by securing more comprehensive exceptions for academic and medical research. I am convinced that the input from the Labour Members has made a real difference to this Bill.
In conclusion, if the House is divided tonight, we will be voting for the Bill. Expert advice and experience from Ireland suggests that a blanket ban is the most effective means of beginning to tackle the pernicious industry in new psychoactive substances. We committed to banning new psychoactive substances in our manifesto, and I sincerely believe this Bill is a good first step in our battle to protect the public and our children from the serious health risks and harms that these dangerous drugs present. However, the fight against the harms brought about by new psychoactive substances is only just beginning, and I will continue to work for better drug education and awareness in this country as that fight continues.
Psychoactive Substances Bill [Lords] (Third sitting)
Lyn Brown Excerpts(8 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lyn Brown (West Ham) (Lab)
I beg to move amendment 57, in clause 57, page 53, line 2, at end insert—
“(2A) The report must inform Parliament on progress made in improving the reach and quality of education about new psychoactive substances.”
This amendment requires the Secretary of State to include a section on progress in NPS education in their statutory review.
The Chair
With this it will be convenient to discuss new clause 4—New Psychoactive Substances—Prevention and Education—
‘(1) In section 84(3) of the Education Act 2002 (curriculum foundation subjects for the first, second and third key stages), after paragraph (g) there is inserted—
“(ga) personal, social and health education.”
(2) In section 85(4) of the Education Act 2002 (curriculum foundation subjects for the fourth key stage), at the end there is inserted “, and
(d) personal, social and health education.”
(3) In section 74(1) of the Education and Inspections Act 2006, which (when brought into force) will substitute a new section 85 in the Education Act 2002, in subsection (4) of that substituted section (foundation subjects for the fourth key stage), at the end there is inserted “, and
(d) personal, social and health education.”
(4) Before section 86 of the Education Act 2002 there is inserted—
“85B Personal, social and health education
(1) For the purposes of this Part, personal, social and health education (“PSHE”) must include, but shall not be limited to—
(a) education about alcohol and tobacco; illegal recreational drugs and new psychoactive substances;
(b) education about emotional health and well-being and how this can be impacted by psychoactive substances;
(c) education about individual safety, including risk taking behaviour.
(2) The National Curriculum for England is not required to specify attainment targets or assessment arrangements for PSHE (and section 84(1) has effect accordingly).
(3) The Secretary of State for Education shall set out guidance to schools and colleges to ensure that a coherent approach to personal, social, health and economic education is developed, including between primary and secondary schools.
(4) It is the duty of the governing body and head teacher of any school in which PSHE is provided in pursuance of this Part to secure that guidance issued under subsection (3) is followed and principles set out in subsections (5) to (6) are complied with.
(5) The first principle is that information presented in the course of providing PSHE should be accurate and balanced.
(6) The second principle is that PSHE should be taught in a way that—
(a) is appropriate to the ages of the pupils concerned and to their religious and cultural backgrounds, and also
(b) reflects a reasonable range of religious, cultural and other perspectives.
(7) The third principle is that PSHE should be taught in a way that—
(a) endeavours to promote equality,
(b) encourages acceptance of diversity, and
(c) emphasises the importance of both rights and responsibilities.
(8) In the exercise of their functions under this Part so far as relating to PSHE, a local authority, governing body or head teacher shall have regard to any guidance issued from time to time by the Secretary of State.”’
This would amend the Education Act to make PHSE, with drugs education including on New Psychoactive Substances, a foundation subject in the national curriculum.
The Minister for Policing, Crime and Criminal Justice (Mike Penning)
If you say no to anything now, Sir David will have to stand up again.
Lyn Brown
We are keeping our powder dry.
On Second Reading, I made it clear that the blanket ban created by the Bill would only partially tackle the problem of new psychoactive substances. The measures in the Bill are an appropriate way to disrupt supply, but if we really want to protect public health, we must also work to reduce the demand for those dangerous drugs. I firmly believe that that requires a comprehensive drugs education and awareness strategy, which is why I have tabled amendment 57 and new clause 4. Amendment 57 would put a duty on the Secretary of State to update Parliament on the quality and reach of new psychoactive substances education in its statutory report. New clause 4 would amend the Education Act 2002 to make drugs education, including a focus on NPS, part of the personal, social, health and economic education foundation subject in the national curriculum.
I will start by speaking about new clause 4 and comprehensive drug education in our schools. In 2010, the coalition Government launched a new drug strategy, which contained some really sensible approaches to reducing demand for drugs. The Government stated that they wanted to
“provide good quality education and advice so that young people and their parents are provided with credible information to actively resist substance misuse”
and to
“intervene early with young people and young adults”.
A preventive and proactive education policy based on information and resilience training is exactly the sort of approach that the Government ought to be taking.
As we know, however, actions speak louder than words. The Government reversed Labour’s plans to make PSHE a statutory requirement, even though that was recommended by the Macdonald review. They also closed the Drug Education Forum, a source of expertise on drugs education in England that disseminated research on drugs and drugs education to teachers across the country, as part of a drastic 80% cut in drugs education spending. Figures from the Department of Health show that drugs education spending was reduced from £3.9 million in 2009-10 to £500,000 in 2010-2011. The Department for Education revealed that there was a 22% cut in spending on drug and alcohol services for young people between 2011 and 2014.
Statistics provided by Mentor, the drug and alcohol charity, show how disastrous those decisions were. Only 15% of schools teach drugs and alcohol education for one hour or more a term, and 59% of young people say that they cannot even remember having a drugs education lesson in the last year. Media reports on the impact of cuts to drugs education included a 2011 survey of staff at 79 local education authorities. More than a quarter of the staff reported that there had been no specialist drugs education support in the past three months. Paul Tuohy, chief executive of Mentor, told The Guardian:
“We are probably in the worst situation for drug education for decades”.
It would appear that where there is drugs education in our schools, sadly it is often of poor quality, incomplete or totally irrelevant.
Carolyn Harris (Swansea East) (Lab)
In my constituency, education on these substances is mainly taken up by the local high sheriff, who has had an excellent campaign to produce leaflets and posters, and to go into most secondary schools. The local police also have an excellent project, called “Weird Science”, and Sands Cymru offers training to teachers and parents within the local authority. However, this work should be included in a curriculum, rather than it being left to other bodies to take up the slack. It is vital that other organisations get involved in this work, but the education really needs to be built into the ban, so that schools are forced to act. The word “legal” is misleading for young people and that needs to be emphasised very strongly at the education level.
Lyn Brown
My hon. Friend is absolutely right. In Wales, which I will discuss next, some really excellent work is taking place and we might learn from it; it would be good if we did.
In 2012, Ofsted concluded that,
“the quality of PSHE education is not yet good enough in a sizeable proportion of schools in England. These deficiencies in learning result in part from inadequacies in subject-specific training and support for PSHE education teachers, particularly in the teaching of sensitive and controversial issues.”
And those are issues such as drugs.
Ofsted also found that in 60% of schools PSHE training was not good enough and certainly needed to improve, and the evidence from the Government’s own inspectors suggests that the Government’s approach to PSHE just is not working. And all this is happening while the presence of NPS has begun to grow in our communities.
Figures from Wales show us just what is possible with a different approach. The Labour Administration in Wales has put drugs education at the forefront of its drugs prevention policy, and there is now a core substance misuse education programme in 97% of Welsh primary and secondary schools, ensuring that almost all Welsh children receive accurate, consistent and credible information about the potential harms of drugs, rather than having to rely on myths, part-information and basic guesswork.
That degree of comprehensive drugs education is possible in England but it is not happening at the moment, and I suggest that that is because of a lack of political leadership. That lack of political will is all the more unjustifiable given that parents want these sorts of issues discussed in schools. For example, a survey by Parentline Plus found that 97% of parents believe that drug and alcohol education should be delivered in schools.
There are signs that the comprehensive approach to drug awareness in Wales is working. The school programme is complemented by the Welsh emerging drugs and identification of novel substances project, an NPS-specific information and harm reduction programme, as well as measures designed to help to educate parents. These are all part of a £50 million investment in reducing drug harms, which has coincided with a rapid reduction in drug deaths in Wales; they are down by 30% since 2010. By contrast, drug-related deaths have been creeping up here in England; there was a 17% increase in the last year and the Office for National Statistics says that drug deaths are now at the highest level since records began in 1993. And according to the national records of Scotland, drug-related deaths in Scotland went up by 16% and are also at a record high.
Mike Penning
I am sure that members of the Committee are aware of these worrying figures. Although this is not the whole answer, when we look at the figures, we see that we had an epidemic of heroin addicts of a certain generation, and that certain generation is coming to a certain age. If we look carefully—I am doing some analysis as chair of the interministerial group on drugs—we see that it seems that the increase has come from within that age profile. There was an increase in deaths, but that was particularly among a group that had no treatment at all. A lot more research is needed—I know that it is being done across the devolved Administrations—but we must look carefully at the figures to find out the reasons, instead of just taking a block figure, although I know the hon. Lady too well to think that she would do that. There are reasons for the increase, and we need to get to the bottom of them, but clearly part of that was the heroin epidemic of the 1980s.
Lyn Brown
I am grateful for that intervention, but we are considering this Bill because the number of NPS-related drugs deaths has been rising. I am desperately looking for the figure in Hansard, but I think it is three hundred and something in a year. Those are the deaths of people’s loved ones and children, many of whom would have been young people who had no idea that they were taking something harmful. I am thinking about preventing those deaths, as there will be empty seats at tables at Christmas time.
Mike Penning
I emphasise that that is absolutely why we are here. Those big figures for deaths will include people affected by the heroin epidemic that I mentioned as well as the people whom we are trying to save through the Bill. I said on Second Reading that the Bill is not a silver bullet, and we must work with other Departments to get out information, health provisions and treatment plans.
Mr David Burrowes (Enfield, Southgate) (Con)
I apologise for being late to the Committee. You will appreciate the reason, Sir David, as I think you share my interest in the Westminster dog of the year competition.
The Minister has mentioned the statistics, and we are moving on from the situation when people were using opiates—such people are older or, sadly, dying. However, the challenge that came out of a visit to a drugs clinic by the Home Affairs Committee was for treatment to go beyond the old substitute-based system towards a more holistic approach that is focused on the addict rather than just the substance. The challenge of NPS for specialist drug treatments, not just in hotspots but generally, relates to grappling with a new drug.
Lyn Brown
I agree with the hon. Gentleman. We need a holistic approach and education must be a part of that. We therefore need what the Welsh Government have: a 10-year plan. Theirs culminates in 2018. I know that it is too early for us to draw conclusions about what its outcomes will be, but the early signs are good, especially with regard to reducing drug harms. [Interruption.] I hope that the hon. Gentleman has not just received a note from his Whip suggesting he should shut up, because I have enjoyed his interventions in Committee. I have passed those notes, so I know that that happens.
Lyn Brown
I would do it much more subtly, but the Government Whip is new.
We should be in no doubt that the evidence suggests that a comprehensive and universal approach to education is the right one, provided that the delivery is right. Recent meta-analysis of the academic literature by Wolfgang Götz and Professor Heidrun Thaiss from the European Monitoring Centre for Drugs and Drug Addiction concludes that universal drugs education works so long as it is not simply about providing information. They state that provision of information is not recommended as a stand-alone measure.
Carolyn Harris
The Angelus Foundation has done good work on the issue and recommended to the Welsh Assembly Government that an hour a term is the minimum standard for drugs education. It also argues for a return to the “Talk to Frank” campaign, which I am strongly in favour of, along with some kind of media campaign.
We talk about good practice in Wales, and I am extremely proud of the work that has been done there, but my local accident and emergency department has experienced a dramatic increase in the number of young people whom you would not necessarily imagine becoming involved in drugs culture experimenting with NPS. In 2011, five young people presented at the only local A&E in my constituency, whereas between April and August this year, 76 young people presented. We need a wider education campaign.
Lyn Brown
I totally and utterly agree.
It is clear that there is no evidence that increased knowledge leads to reduced drug use. The EMCDDA came to that conclusion in its 2006 report. Frankly, too much of the drugs education in our schools is focused on providing information. The Department for Education’s review of PHSE found that students find drug education “boring” because what they did in PHSE too closely mirrored what they learned in science lessons. The review found that staff thought that the issue should be addressed from a different direction in PHSE. That point was made to the Home Affairs Committee during its review of UK drug policy in 2012. Paul Tuohy of Mentor, which is a strong advocate of good-quality drug education, stated starkly:
“We are spending the vast majority of the money we do spend on drug education on programmes that don’t work”.
The Home Affairs Committee asked a number of local authorities to survey secondary schools in their area to ask whether they used the life skills programmes it learned about while gathering evidence for its report. None said that they used any of the programmes.
A narrow focus on providing information to students is likely to be holding us back. Evidence suggests that to get drugs education right, information has to be taught alongside a focus on the life skills that empower young people to resist peer pressure and make informed decisions. When young people go into a head shop and see these lovely coloured sachets, it will be good for them to know that they contain illegal substances that are not safe—[Interruption.] The Minister says from a sedentary position—
Mike Penning
I apologise for chuntering. Of course, the head shops will not be there. I accept that people may still try to sell these products, but instead of being legal highs, they will be illegal highs. The head shops as such will vanish, as has happened in Ireland.
Lyn Brown
I hope that the Minister is right. I fear that the head shops will transmogrify and change what they do. They will still exist, selling bath salts and other things, and it will be up to us and local authorities to prove that the substances they are selling—ostensibly to go into the bath or to feed fish—are in fact being used for nefarious purposes and are illegal highs. Although I genuinely hope that the Minister is right, I fear that these head shops will not necessarily go away. Irrespective, however, drug dealers and pushers are still going to exist, so we need to educate our children and make them resilient to the messages from such people.
Life skills can be taught effectively only by helping children to think about the challenges and dangers that they face, including about how drugs are often followed by bullying, debt and exploitation. We need information, values and context to deliver quality drugs education, which is why that education should be part of a comprehensive personal and social education that can be provided only by PHSE. I have voted to make PHSE a statutory requirement—I am sure that I will do so again—because it is an important tool in our fight against psychoactive drugs and those who push them.
As we know—many Members will be parents—every child is different, so universal drugs education must be complemented by specifically tailored messages and support for those who are most vulnerable to the messages of drugs and drug abuse. Universal drugs education makes it easier to identify those who need early intervention. Schools ask children at an early age to draw pictures of what they understand by common drugs terms. That enables educators to know which children are more familiar with substance abuse than one would expect of a child growing up in a safe environment. There is no trade-off between universal and targeted education; they naturally complement each other.
Mike Penning
That is exactly what is No. 1 on the agenda with the Schools Minister next week. We need to share information. As the scientists and the ACMD develop the knowledge base, we need to share that knowledge base. It is not something we want to hold in, and that is why we have made the review as open as possible. If we do not share that knowledge, we will have people out there trying generally to help people, but probably not sending the message out and doing the work that needs to be done.
If I not only write to everyone on the Committee but develop extensively what we are going to do based on what I have said today—admittedly, most of this particular area is devolved—I hope the hon. Lady will withdraw her amendment. If I update everyone as we develop that, she can see what we are doing as we move forward and we can give her as much help as possible, as we have all the way through the Bill. However, if she does press the proposals to a vote, I will sadly oppose both the new clause and the amendment.
Lyn Brown
I really am grateful to the Minister for outlining what is going on. It is clear that some activity is happening. Bilaterals with the Schools Minister and action across all Departments are to be welcomed. I also welcome the Minister’s suggestion that he write to us about all the education programmes that are happening, about to happen, or being considered. I am sure that would be really useful to us all.
However, given that the Education Committee will receive a report on the education about these substances and the issues involved in reducing demand for them, it would not be a huge step to include that report within the review and to accept amendment 57. In fact, amendment 57 is very gentle. It is not really asking for very much more than that Parliament be kept informed of the way forward regarding our reducing the demand for these drugs. If the Education Committee can be kept informed, I cannot see why Parliament cannot be.
I ask the Minister to think again and consider accepting amendment 57 if he cannot go all the way and accept new clause 4, although it would also be a great pity if he cannot accept new clause 4. I am sure that the Department for Education would actually thank him for accepting new clause 4, which would alter its curriculum, because the DFE possibly needs a bit of a jolt, and the impact of new clause 4 on PSHE would be to give it an amazing boost to its arm.
The Minister does not look as if he is rising right now to assure me that he will accept new clause 4, so I ask him to spend the weekend and maybe next week—I know he will not have an awful lot on now that consideration of this Bill is coming to a close—thinking about amendment 57 and new clause 4, and perhaps on Report he will make my day. Then I can buy that bottle of champagne for us all to share.
Lyn Brown
Guinness is not a problem.
I will probably come back to this issue on Report, but today I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 ordered to stand part of the Bill.
Clause 58
Interpretation
Amendment made: 38, in clause 58, page 36, line 23, after “Court” insert
“, other than the reference in section 30(1) in relation to a prohibition order made under section 18,”—(Mike Penning.)
This amendment disapplies the transitional provision in clause 58(5) in relation to appeals under clause 30(1) about variation and discharge in relation to prohibition orders made under clause 18.
Clause 58, as amended, ordered to stand part of the Bill.
Clause 59 ordered to stand part of the Bill.
Schedule 4
Consequential Amendments
Amendment proposed: 39, in schedule 4, page 48, line 16, at end insert—
“Intoxicating Substances (Supply) Act 1985
(1) The Intoxicating Substances (Supply) Act 1985 is repealed.
(2) In consequence of the repeal made by sub-paragraph (1), in Schedules 3 and 6 to the Regulatory Enforcement and Sanctions Act 2008, omit the entry relating to the Intoxicating Substances (Supply) Act 1985.”—(Mike Penning.)
This amendment repeals the Intoxicating Substances (Supply) Act 1985.
Lyn Brown
I will be brief. The amendment repeals the Intoxicating Substances (Supply) Act 1985, which bans the sale of solvents to children if there is reason to believe the substances will be misused.
The Government have explained that they are repealing the 1985 Act because they think it is good legal practice not to have “overlapping criminal offences” covered in separate legislation; I understand that. They say that the offences under the 1985 Act are all covered by this Bill, so the 1985 Act is redundant. I agree with the principle of not having overlapping criminal offences, but I must admit that I was a bit surprised to see this amendment.
The Government’s belief that selling solvents to children is covered by this Bill implies that, in certain circumstances, selling solvents to adults will now be considered a crime. Is that the case? If it is, presumably shopkeepers would need to know that selling solvents to adults is “reckless” and that the solvent will be consumed for a psychoactive effect. That seems to be a bit of a stretch when it comes to adults. Many of us would purchase such solvents for legitimate purposes and I do not understand how a shopkeeper could understand that I was taking the solvent away to sniff, if I may put it in such crude terms, because sniffing is obviously something I know about, being of that age—not that I did it. Let me be very clear about that.
Lyn Brown
This is my era; I kind of get it.
Even if the issue with selling solvents to adults is resolved, the issue of sentencing remains. The 1985 Act does not provide for sentences longer than six months; as we know, the maximum tariff in the Bill is seven years. Selling to a child is an aggravated offence, so is more likely to lead to harsher penalties. There is an enormous gulf in the sentences provided for in the two pieces of legislation. I wonder whether it is sensible for the Bill to try to control the specific offence of selling solvents to children.
Are we confident that solvents are captured by the definition of psychoactive substances? We do not want to repeal the 1985 Act if it in any way weakens the law. Are we satisfied that it is appropriate to extend the 1985 Act’s provisions on sales to under-18s to everyone? If it is, why has it not been done already? I can imagine there might be unintended consequences. My anxiety is over how, when I walk in tomorrow and buy a solvent, my local newsagent is going to know whether I am going to use it for sniffing. One would assume that someone of my age was not, but that is not necessarily the case.
The change seems to be a significant one to make in an amendment: there is a significant extension of the punishment. Does the Minister think that is justified? There have been very few recent prosecutions under the 1985 Act for the sale of solvents to children. I do not know why the Government expect to enforce the offence more with this Bill than it has been enforced under the 1985 Act. I would be grateful for some help from the Minister.
Mike Penning
I can understand the shadow Minister’s concerns—I come from that era as well. The interesting thing is that the existing legislation was targeted at a specific age profile and worked. We keep talking about children, but the Bill is not specifically targeted at them. When the 1985 Act was introduced, the same argument was made about how individual shopkeepers would know, but we have proven that it can work.
Mike Penning
Fortunately, there are now few prosecutions because people know. That is the principle behind the Bill. The maximum penalty will be seven years, but we would expect the job to be done by trading standards in a non-legislative way, so we would not be penalising anyone. I have obviously taken all the legal advice on this matter, and we feel that the change is needed and that this is the right way to do it. I repeat that we are not trying to protect children only; we are also trying to protect adults, some of whom are also very vulnerable.
Lyn Brown
I am still concerned by the issue of sentencing, because the punishment will be extended significantly. I do not know whether the Minister thinks that is justified. Also, there have been so few prosecutions under the 1985 Act. Lastly, I genuinely do not understand how a shopkeeper would know if the Minister or I were walking in to buy our solvent of choice to sniff away tonight in front of the TV. When young children went into a shop to purchase solvents it was often quite obvious that they had in mind some activity other than that for which the solvent was designed, for which they probably would not have had a purpose.
Mike Penning
I do not want to detain the Committee any further, but the change has not come as a particular shock to the British Retail Consortium or the Association of Convenience Stores, because we have been working with them. It is designed not to penalise small shopkeepers, but to ensure that they are confident, and we will work with them as the Bill proceeds. We will have considerable time, even after Royal Assent, but I am already working with the relevant bodies, which represent a significant part of the industry.
Amendment 39 agreed to.
Schedule 4, as amended, agreed to.
Clauses 60 to 62 ordered to stand part of the Bill.
New Clause 2
Possession of a psychoactive substance in a custodial institution
‘(1) A person commits an offence if—
(a) the person is in possession of a psychoactive substance in a custodial institution,
(b) the person knows or suspects that the substance is a psychoactive substance, and
(c) the person intends to consume the psychoactive substance for its psychoactive effects.
(2) In this section “custodial institution” has the same meaning as in section 6.
(3) This section is subject to section (Exceptions to offences) (exceptions to offences).’.—(Mike Penning.)
This new clause provides for a new offence of possession of a psychoactive substance in a custodial institution.
Brought up, read the First and Second time, and added to the Bill.
New Clause 3
Exceptions to offences
‘(1) It is not an offence under this Act for a person to carry on any activity listed in subsection (3) if, in the circumstances in which it is carried on by that person, the activity is an exempted activity.
(2) In this section “exempted activity” means an activity listed in Schedule (Exempted activities).
(3) The activities referred to in subsection (1) are—
(a) producing a psychoactive substance;
(b) supplying such a substance;
(c) offering to supply such a substance;
(d) possessing such a substance with intent to supply it;
(e) importing or exporting such a substance;
(f) possessing such a substance in a custodial institution (within the meaning of section (Possession of a psychoactive substance in a custodial institution)).
(4) The Secretary of State may by regulations amend Schedule (Exempted activities) in order to—
(a) add or vary any description of activity;
(b) remove any description of activity added under paragraph (a).
(5) Before making any regulations under this section the Secretary of State must consult—
(a) the Advisory Council on the Misuse of Drugs, and
(b) such other persons as the Secretary of State considers appropriate.
(6) The power to make regulations under this section is exercisable by statutory instrument.
(7) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.’.—(Mike Penning.)
The new clause inserted by this amendment (which will replace clause 10) provides that it is not an offence under clauses 4 to 8, or the offence under the new clause inserted by NC2, for a person to carry on an “exempted activity” listed in the new Schedule inserted by NS1. The new clause also provides a power to add or vary any description of activity specified in the new Schedule.
Brought up, read the First and Second time, and added to the Bill.
New Clause 1
Breach of a premises notice
‘(1) A senior officer or a local authority may issue a notice requiring a premise to cease trading if conditions A, B and C are met.
(2) Condition A is that the premise has been issued a premises notice under section 13 of this Act.
(3) Condition B is that in the view of the senior officer or a local authority that issued the premises notice, the terms of that notice are not being complied with.
(4) Condition C is that the senior officer or local authority has made an application to an appropriate court for a premises order under section 19 of this Act.
(5) A notice issued to a premise under subsection 1 shall cease to have effect when a court has considered an application for a premises order in respect of that premise.
(6) In a case where a court has decided not to issue a premises order to a premise that has been subject to a notice under this section, the court may order the local authority or the senior officer’s organisation to pay compensation to the owner of the premises in respect of income lost due to the suspension in trading.
(7) For the meaning of “senior officer”, see section 12(7).’.—(Lyn Brown.)
This new clause’s intention is to allow a senior officer or local authority to comply a premises to stop trading while it applies for a premises order.
Brought up, and read the First time.
Lyn Brown
I beg to move, That the clause be read a Second time.
The new clause was tabled by my hon. Friend the Member for Barrow and Furness, who has a long-standing interest in the issue. Unfortunately, he is unable to be here today, as he is at a funeral, so I am moving the new clause on his behalf. I make it clear that the broad thrust of the Bill is welcome; the new clause is intended to add to, rather than contradict, its provisions.
I want briefly to set out the context in which the new clause sits. My hon. Friend has been campaigning on legal highs for several years following a series of incidents in his constituency involving such drugs. He is, understandably, especially concerned about the drugs’ damaging effects, especially on young people, and the police’s inability to take swift action to deal with the suppliers and distributors of legal highs. He has also been a strong supporter of the successful “Ban Them Now” campaign against legal highs in Cumbria that has been run by the North-West Evening Mail, a fabulous campaigning newspaper that has done a huge amount to raise awareness of the issue in the region.
Lyn Brown
I am not sure that I am going to get any votes there.
The new clause, which is supported by the Local Government Association, is intended to address the potential delay between the point at which the police believe a premises order has been breached and the point at which a court authorises a closure order. During such a delay, there is a worry that a premises may be able to continue to trade prohibited substances without the police being able to take appropriate action. The Advisory Council on the Misuse of Drugs has found nefarious tactics when that happens, including NPS sales. Pushers may offer offer two-for-one deals, which encourage binging and stockpiling.
Premises that are found to be trading illicit substances can be dealt with under part 4, chapter 3 of the Anti-social Behaviour, Crime and Policing Act 2014. The closure orders contained within the Act do not apply specifically to psychoactive substances—they are more of a catch-all—but they have nevertheless been used to take action against shops that trade in legal highs. Under the existing power, a court is obligated to hear a case for a closure order within 48 hours of the application being made by the police. That is not necessarily a guarantee of no delays, as the police are advised in the legislation to delay applications to court until they believe that the case can be heard within the 48-hour limit. Nevertheless, that limit provides some assurance that cases will be heard swiftly and that the police will be able to act accordingly.
In the absence of a similar provision in the Bill, there is a concern that delays may occur at that point in the process. In fact, the Bill imposes no time limit between a notice and a court order. We know that our courts are facing mounting pressures due to their case loads, which heightens the fear that the provisions in the Bill will cause further delays.
New clause 1 is a modest proposal that would allow senior police or local authority officers to obtain an order to require a premise to cease trading, provided that certain conditions are met. That action would be taken only when a premises order had already been made; when, in the opinion of the officer, the business was in breach of the order; and when the application to a court had already been made. There is also provision for compensation to be paid to businesses if the power is ever used in error.
Of course, we would hope that the power would have to be used only sparingly. The new clause would be a safeguard to ensure that no offenders slipped through the gaps and to give the police the powers they need to take action as soon as possible. I hope that the Minister agrees that the new clause is limited, proportional and considered. It is very much in the spirit of the Bill, and I hope it will command broad support.
Mike Penning
I also pay tribute to the hon. Member for Barrow and Furness—he is my hon. Friend really, although he probably would not like to admit that to some of his colleagues—for his campaigning. Many members of the Committee have been campaigning for many years on this subject.
Of course, the police and the courts are the end of the process for most cases. We know that powers are already there for local authorities and trading standards, which have been doing a lot of this work, so a problem arises only when there is a breach of a notice. Significantly, the new clause would give local authorities and senior officers the power to require specific premises to cease trading while an application is made. I have seen no evidence from the police that they feel that is necessary. Actually, new clause 1 could weaken judicial oversight, which none of us wants. This is a specific issue for England, of course. I think I am right about that, but it could be England and Wales—[Interruption.] I have got it wrong then; when I get things wrong, I always say so as soon as I can.
I fully understand where the hon. Gentleman is coming from in tabling the new clause, but I do not feel that he needs to have such concerns. The measure would be used right at the very end of the process. We would hope, as the hon. Member for West Ham said, that it would be used in very few cases, not least because of the number of civil sanctions in the Bill.
I am absolutely confident—I have been assured by the Ministry of Justice and the Attorney-General—that we will not have a problem, but the matter will be part of the review, so we can keep our eyes open to see exactly what is going on. Even though I fully understand and respect the reasons why the new clause was tabled. I am afraid I do not see the need for it and I am concerned that it might weaken judicial oversight. Sadly, towards the end of our time in Committee, I must disagree with the hon. Lady.
Lyn Brown
Do you know, Sir David, this Minister is just not giving me satisfaction?
Given that we sprung the new clause on the Minister in the last knockings of this Bill Committee, will he take it away and have a quick look at it? Perhaps after talking to the LGA and his fabulous civil servants, he might find that there is a need for it. We love humility, so if he comes back to us on Report and tells us that he has thought again, we will applaud him to the rafters, rather than making any political capital.
Mike Penning
Assuming that the new clause is not pressed to a Division, I will take a long look at it, as if I take a quick look at it, I will be criticised for not taking a long look at it. I will seek advice from not only my Department, but the other relevant Departments, as well as my excellent Bill team. We will probably discuss this on Report but, at present, I cannot support the new clause.
Lyn Brown
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Schedule 1
“Exempted activities
Healthcare-related activities
1 Any activity carried on by a person who is a health care professional and is acting in the course of his or her profession.
In this paragraph “health care professional” has the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 8 of those Regulations).
2 Any activity carried on for the purpose of, or in connection with—
(a) the supply to, or the consumption by, any person of a substance prescribed for that person by a health care professional acting in the course of his or her profession, or
(b) the supply to, or the consumption by, any person of a substance in accordance with the directions of a health care professional acting in the course of his or her profession.
3 Any activity carried on in respect of an active substance by a person who—
(a) is registered in accordance with regulation 45N of the Human Medicines Regulations 2012, or
(b) is exempt from any requirement to be so registered by virtue of regulation 45M(2) or (3) of those Regulations.
In this paragraph “active substance” has the same meaning as in the Human Medicines Regulations 2012 (see regulation 8 of those Regulations).
Research
4 Any activity carried on in the course of, or in connection with, approved scientific research.
In this paragraph—
“approved scientific research” means scientific research carried out by a person who has approval from a relevant ethics review body to carry out that research;
“relevant ethics review body” means—
(a) a research ethics committee recognised or established by the Health Research Authority under Chapter 2 of Part 3 of the Care Act 2014, or
(b) a body appointed by any of the following for the purpose of assessing the ethics of research involving individuals—
(i) the Secretary of State, the Scottish Ministers, the Welsh Ministers, or a Northern Ireland department;
(ii) a relevant NHS body;
(iii) a body that is a Research Council for the purposes of the Science and Technology Act 1965;
(iv) an institution that is a research institution for the purposes of Chapter 4A of Part 7 of the Income Tax (Earnings and Pensions) Act 2003 (see section 457 of that Act);
(v) a charity which has as its charitable purpose (or one of its charitable purposes) the advancement of health or the saving of lives;
“charity” means—
(a) a charity as defined by section 1(1) of the Charities Act 2011,
(b) a body entered in the Scottish Charity Register, or
(c) a charity as defined by section 1(1) of the Charities Act (Northern Ireland) 2008;
“relevant NHS body” means—
(a) an NHS trust or NHS foundation trust in England,
(b) an NHS trust or Local Health Board in Wales,
(c) a Health Board or Special Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978,
(d) the Common Services Agency for the Scottish Health Service, or
(e) any of the health and social care bodies in Northern Ireland, as defined by section 1(5) of the Health and Social Care (Reform) Act (Northern Ireland) 2009.”—(Mike Penning.)
The new Schedule inserted by this amendment lists exempted activities for the purpose of the Bill. These include activities carried out by health care professionals acting in that capacity and approved research activities.
Brought up, read the First and Second time, and added to the Bill.
The Chair
As a number of new colleagues are serving on a Bill Committee for the first time, let me say that we traditionally end our proceedings with some very brief remarks.
Lyn Brown
On a point of order, Sir David. I want thank a number of people for the conduct of our proceedings during the Bill’s scrutiny. This has been a massive learning curve for me, not only because of the Bill’s subject, but as this is the first time that I have served on a Committee in such a role for the Opposition. I thank all concerned for the support, generosity of spirit and kindness shown to me.
My learning started in a surprising way when, at a team meeting with my shadow colleagues, I was briefed by a Member of the other place on exactly what the Bill entails. He talked about poppers—I had never heard of them. The shadow team, including the noble Lord, laughed and suggested that I go home and watch several series of “Breaking Bad” in order to educate myself. They also thought that I should talk to the little boy on a bike who apparently cycles between my house and Plaistow station offering substances to people, including members of my staff team, although he has never stopped to offer me anything. It was not like that at all in my student days but, with a modicum of help from a number of agencies and others, I was able to get up to speed—[Interruption.] Yes, that was around when I was young.
I want to thank the Minister for his welcome and commend him for encouraging and facilitating the sense of consensus that has been a real feature of our deliberations. I thank him for his positive responses on the issues that Opposition Members have flagged up as needing review. I hope he agrees that this has been a really good Bill Committee and that our deliberations have made the Bill better and stronger.
I thank the people who have supported me. My wonderful Whip, my hon. Friend the Member for Easington, is normally a garrulous fellow, but he has been amazingly quiet and a strong man who has guided me through the terrors of the Committee with great skill. I thank you, Sir David, and your fellow Chair, Mr Howarth, for your excellent and effective oversight of our proceedings and ensuring that I have not gone astray. I am particularly grateful for the advice and support of the Clerk, Mr Williams, who has been very generous with his time and sensitive to the fact that this was my first time in such a role. We have not over-troubled the Doorkeepers by requiring them to go into the corridors and shout loudly, but it is always a comfort to know they are there, passing me notes and fizzy water. I thank Hansard for its reporting. I, for one, will be grateful to have some time off from having regularly to articulate the words “psychoactive substances”, which is quite a mouthful when we are going at full tilt.
I thank my Opposition colleagues, particularly my hon. Friend the Member for Swansea East, who has given her insights into what is going on in Wales, and my hon. Friend the Member for Denton and Reddish, who could not be present today because of a funeral, but has spoken elegantly on the public health aspects of the Bill. I also valued the contributions of our Scottish National party colleagues, who made this a genuinely consensual matter. I thank all Committee members for their laughter, for picking up on my little jokes and for their pursuit of consensus as we consider matters of such fundamental concern for public health. I look forward to our consideration on Report.
Owen Thompson
On a point of order, Sir David. I very much associate myself and my hon. Friend the Member for Linlithgow and East Falkirk with the comments made by the shadow Minister. This has certainly been an experience for us as well, as it has been our first Bill Committee. The approach that the Committee has taken highlights the importance of the Bill and its potential to help to deliver safer communities. Our resounding agreement on the destination we are trying to reach, if not the specifics of any amendments that we have debated, has been encouraging and shows that the direction of travel is certainly right. Although we might have minor disagreements along the way, what is ultimately delivered will be particularly useful.
I thank you, Sir David, and Mr Howarth for being so gentle with us newer Members. I look forward to the Bill’s next stage in the Chamber.
Psychoactive Substances Bill [ Lords ] (Second sitting)
Lyn Brown Excerpts(8 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
I remind the Committee that with this we are discussing Government amendment 4.
Lyn Brown (West Ham) (Lab)
These amendments would replace the passages defining authorised, investigational, homeopathic and traditional herbal medicines in the list of exempted substances with the definition of medicinal products found in regulation 2 of the Human Medicines Regulations 2012. I understand that the Government feel it redundant to explicitly exempt those types of medicine because they are covered by the new definition. The explanatory statement says that these medicines will fall within the revised definition. How certain is the Minister that that is the case? One reason the Bill has had wide support is that the Government have been explicit that herbal remedies will not be controlled. We must be sure that the redrafting has not moved the goalposts. I understand there is particular concern about the Government’s lack of expertise in eastern medicines that may be deemed psychoactive.
My other concern is that the 2012 regulations appear to offer a very broad definition of a medicinal product. They state that a product is medicinal if it is
“presented as having properties of preventing or treating disease”
or administered with a view to
“restoring, correcting or modifying a physiological function”.
I am not an expert on legal drafting, but both those phrases appear to suggest that whether a product is medicinal is subjective; it depends on how the drugs are presented or viewed, rather than what they actually do. I would like further details from the Minister on that point. We do not want a product to be classified as medicinal and exempted from the Bill just because someone claims it has medical or medicinal properties.
Owen Thompson (Midlothian) (SNP)
I beg to move amendment 56, in schedule 1, page 39, line 23, at end insert—
“Miscellaneous
11 —alkyl nitrates”
This amendment seeks to implement a recommendation by the Home Affairs Select Committee that “poppers” should not be banned.
I will try to be succinct. We felt it was important to table this probing amendment following the evidence gathered by the Home Affairs Committee and published in its report last Friday. I am not looking to press the amendment to a vote, but it is something that should be taken into consideration as we move towards Report.
The Home Affairs Committee received evidence from the National AIDS Trust and the Gay Men’s Health Collective that seemed to suggest that there was no medical evidence to suggest that poppers are in any way harmful. I am not an expert so I am open to contrary arguments. In this, as in so many areas of the Bill, the amendment is trying to avoid the unintended consequences of action or inaction that might be taken.
We felt that the inclusion of this miscellaneous exemption under schedule 1 would help to prevent any such unintended consequences, such as driving these substances underground and the increasing reliance on class A and class B drugs and other things that could be far more harmful to individuals who currently use poppers. We would be keen to see further discussion on the inclusion of this very specific exemption under alkyl nitrates; however we would not be looking to press it to a vote at this stage but would look to take it forward on Report.
Lyn Brown
The amendment would specifically exempt poppers from the controls contained within the Bill. I am aware that the Home Affairs Committee, as the hon. Member for Midlothian stated, received plenty of evidence on the issue. It concluded that poppers ought to be excluded from the scope of the ban in the Bill. Organisations including the National AIDS Trust and the Gay Men’s Health Collective argued that harm from poppers was low due to the effective regulation of the compounds amyl nitrate and butyl nitrate. Not exempting poppers from the list of psychoactive substances would take the use of alkyl nitrates outside of any regulation.
Andrew Gwynne
My hon. Friend is right to talk about the health of gay men in particular. Is she as concerned as I am that one of the unintended consequences of banning poppers could be the use of harder drugs and the risk from that not only in potential mental health problems of those that are using them but also sexual health because of the heightened risk of unprotected sex and sexually transmitted infections?
Lyn Brown
I thank my hon. Friend for making that point. One of the arguments against poppers is also that it could adversely impact on the sexual health of those imbibing. That argument can be used both ways. My hon. Friend is absolutely right; the Home Affairs Committee is quite clear that if we do not exempt poppers that could lead to increased health harms.
Dr Owen Bowden-Jones, a consultant psychiatrist and lead clinician for the Club Drug Clinic at the North West London NHS Foundation Trust, stated:
“As far as I can speak as a clinician, I do not think I have ever seen anybody come through”—
our clinic
“with harms related to poppers”.
Professor Iversen of the ACMD also stated that the ACMD had not seen
“sufficient scientific evidence”
that would prove harm in the case of poppers
“to justify a recommendation under the Misuse of Drugs Act.”
He was also not aware of any growth in the use of poppers.
I had supper last night with my hon. Friend the Member for Rhondda (Chris Bryant), who told me that the long medical history of the former Member and Labour Foreign Secretary Ernie Bevin meant he took poppers around the Cabinet table quite regularly. Apparently, that was because his doctor told him he had no sound organ left in his 18-stone body apart from his feet, and the poppers kept him going.
The Chair
Order. As my son would say, that possibly falls under the category of “too much information”.
Lyn Brown
I take your advice, Mr Howarth.
Given the evidence published by the Home Affairs Committee on Friday, I am sympathetic to the SNP’s amendment, and I wonder what the Minister makes of the evidence. If the ACMD, through Professor Iversen’s evidence, is suggesting that poppers have a low risk of harm, it would be within the scope of the Bill to place poppers on the exemption list.
I repeat: it is quite clear that I am not an expert on drug taking or drugs. I hear there has been a change in the formula used for poppers, and that a trickle of new evidence suggests the new formulation causes damage to the centre of the retina. Although reports of visual loss are very rare, this underlines the fact that we need an established mechanism for approving exemptions, whereby representations can be made to the ACMD if it is believed that an exemption should be granted. Experts, not me, need to assess the evidence and decide whether the case for exemption has merit. Poppers ought to be subject to the same evidence-based process as any other drug. This debate and the discussion around poppers underlines the need for the sort of established mechanism that I called for in our debate on clause 3.
Mr David Burrowes (Enfield, Southgate) (Con)
It is a pleasure to have the opportunity to contribute to this debate on an extremely significant and welcome Bill. I plead guilty to being a member of the Home Affairs Committee, which made these recommendations. I have had a number of conversations about issues around poppers, although I have never been a particular expert or had the benefit of having dinner with the hon. Member for Rhondda to discuss the issue of poppers in any great detail. I have, however, met with a representative from the Clonezone chain of sex shops, who made the case for having poppers properly regulated and in the open, as well as Boyz magazine, which has expressed concerns. Will the Minister indicate what evidence he has received from the gay community on this issue?
I will not repeat the evidence that the Home Affairs Committee heard, as the points have been well made. The issue is recognising the present harm level. I do not want to interfere in this morning’s debate, as I was not there, but the definition in the Bill is a blanket ban. One has to weigh up the impact of an exemption of alkyl nitrates on the blanket nature of the ban and the precedent that would set.
The case that was made to the Home Affairs Committee and that has been made to me is that we are now in a position where poppers are properly regulated and controlled, not least by the gay community itself. Previous concerns about harm and abuse in relation to poppers were relevant when poppers were compounds, and there were some tragic incidents involving other drugs being combined with poppers. The gay community makes the case that as far as its activities are concerned, poppers are best in the open and not banned.
The wider issue, which has not been mentioned before, is proportionality and where the focus of the Bill is. I think we all agree that those who consume poppers for personal use—we will come on to importing and exporting in a subsequent debate—are not the main target of the Bill. At the very least, we need to look at the focus of enforcement regarding the psychoactive substances that are on the market, and we all agree that it should be on the bad people who shift their evil trade around. Even if the Bill is enacted in its present form, I suggest that those who consume poppers in their private domain will not be a particular target of enforcement activities.
Lyn Brown
Does the hon. Gentleman agree with me—I think he does, because he has said that people who consume poppers are not the target of the legislation —that we are looking at targeting drugs that do a lot of harm? I am anxious that we will spend resources going into clubs and arresting people who have poppers on them, which will look good on the stats but will not take off the streets the drugs and the people that we want to target through the legislation?
Mr Burrowes
We will have the benefit of a 30-month review, where we will be able to look at the impact of the legislation. We need to ensure that it gets on to the statute book so that it can arm the police to get out there and find the people whom we really want to focus on. I cannot believe that those with poppers will be the main focus. We can ask that question in 30 months’ time to, I hope, reassure ourselves. This debate will help with that, and perhaps the Minister will give us some reassurance as well.
How will this be dealt with practically and properly? I hasten to say that those who consume poppers have not so much to fear; it is the people who shift the new psychoactive substances around in bulk who are causing menace. I look forward to the Minister’s response, in which I hope he will outline the evidence that the Home Office has received about the harm caused by poppers, because he has expressed real concern to the Committee about such harm.
Mike Penning
I accept the point. I know exactly what it says. I beg to differ with the report and the work that was done by colleagues because of the principle of the blanket ban. If we have exemptions, what other types will be brought forward by others at other times? The principle of the blanket ban would be affected if we accepted the amendment, so I ask the hon. Member for Midlothian not to move it, or to withdraw it. Other Members may of course pursue that.
I have one final point to make. I am conscious that presumably—although we will wait for the business managers—we are not going to have a huge amount of time on Report. If we leave too much to Report, I am conscious that we might not have the time to debate the issues that we have already agreed to in the length of time available.
Lyn Brown
The Minister says that possession is not an offence. We are going to come to clauses later where I want to probe that. One of the issues around clubbing is that one person out of a group of six may well find themselves getting the poppers for the group and then doling them out to the group when they get to a club. In those circumstances, because there would be an “intent to supply”, the possession of poppers would be an offence. However, again, that is about using resources on something that has not been shown to have a harmful effect or to cause harm.
The Minister said that he wants to review, and in the review we can look at whether poppers have been particularly targeted. Can he confirm that when we get the review it will have a breakdown of which psychoactive substances action has been taken on? The issue is again that of resources. To show that action has been taken on psychoactive substances by any particular police force, it would be quite easy to take action on those who are using poppers. I want the action taken on those who are selling really harmful substances, not on the type of substances where the Select Committee’s report suggests there is no evidence of harm. Can the Minister confirm that in that review we will be able to see the types of substances that police forces have concentrated on when they have been taking action?
The Minister also talks about a blanket ban. We have a blanket ban but we also have an exemptions list. We have an exemptions list that includes incense, and coffee—I am grateful for that as I am not sure how I would have managed to get up this morning without it. When we are talking about a blanket ban, we want that to be on harmful substances—substances that cause harm, not substances that do not harm. Would the Minister consider publishing the evidence he has that poppers have entered a realm where they may well be causing harm? That would be helpful.
I think this will be revisited at Report; if not by either of the Front Benches, my guess is that there will be others who will have been moved by the letters and emails that they will be getting over the next week or so, who have perhaps been part of the Home Affairs Committee and are aware of the Committee’s recommendation that this is placed on the exemption list. Could I ask the Minister to genuinely reconsider on this issue? It is not that we are soft on drugs. We are hard on drugs and we want to be hard on the harmful drugs that could cause massive harm to many within our communities. Will the Minister take that on board?
Mike Penning
I assure the shadow Minister that in the evidence I send back to the Select Committee on that report, I most certainly will indicate the concerns that we have around harm to do with poppers.
The blanket ban is not targeted, because it is a blanket ban. It is obviously for trading standards, the police and the Crown Prosecution Service to make the decisions. When we come to the review, data will be available to ensure that we understand how the new Act is being implemented.
Mike Penning
I was just coming on to that. When the Bill was going through the Lords I expected that the matter would be debated and extensively lobbied, but it was not. I understand that it was not raised at all. I also expected my door to be bursting open following requests for meetings from the different lobby groups, but I have not received any delegations. I am slightly surprised. One of the Justice Ministers raised the matter when a group was seeing them on a separate issue. I am well aware that colleagues were lobbied when they were named as members of the Committee. However, if the matter was of such concern, I would have expected representations, but I have not had any, and I am not the shyest person if people want to see me.
That is not a criticism. It is just that the question was asked and the answer is that I have not had any representations.
Lyn Brown
I know that this is not scientific, but my Facebook pages had not included anything about the matter until the end of last week. Perhaps the Minister’s door has not yet been knocked on, but my guess is that it might be knocked on, fairly loudly, by those groups as the issue becomes more apparent and the community becomes more aware of it.
Mike Penning
I have made a rod for my own back but, as I said, my door is always open.
The news that we were going to have a blanket ban is not new; everybody has known about the ban. Several other organisations, including the Churches, were worried about this issue. It has been debated extensively within the Lords. I accept that there is now a campaign on this issue, which seems to have started quite vigorously, but during the progress of the Bill in the other place and throughout the investigations that I have carried out, it was not raised with me.
Lyn Brown
May I just say to the right hon. Gentleman that I think one of the reasons that the issue was not raised with him is that there has been an assumption that the legal highs that we are banning are the bad stuff—the materials that actually cause harm? Therefore, there has perhaps been an assumption that poppers, which do not cause harm or at least have not been considered to cause harm, would not fall within the scope of the Bill.
Owen Thompson
I would certainly welcome that approach. We have talked a lot about how we are building the Bill around the Irish experience, but I do not see any reason why we cannot look to that experience and make it better. I think that that is ultimately what we are all trying to do. I do not seek to press the amendment to a vote at this stage; I merely want us to make the arguments and discuss it, as we are doing. I will take the matter forward to Report, when we can discuss it in more detail. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1, as amended, agreed to.
Clause 4
Producing a psychoactive substance
Amendment made: 5, in clause 4, page 2, line 32, leave out from “subject to” to end of line 33 and insert “section (Exceptions to offences) (exceptions to offences).” —(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 4, as amended, ordered to stand part of the Bill.
Clause 5
Supplying, or offering to supply, a psychoactive substance
The Chair
With this it will be convenient to discuss the following:
Amendment 52, in clause 5, page 3, line 15, at end insert—
‘(5) It is not an offence under this section for a person (“A”) to supply a psychoactive substance to person (“B”), where A and B are known to each other and such supply is part of an agreement to obtain psychoactive substances for either As, Bs or both’s own consumption, and the supply does not profit person A.”
This amendment seeks to explore how to avoid one person being criminalised when as part of a group, he is responsible for obtaining psychoactive substances e.g. via the internet; when in reality each person in the group is purchasing for their own consumption.
Amendment 49, in clause 7, page 4, line 17, at end insert—
“(d) the person intends to do this for personal gain”
This amendment would mean possession with intent to supply would only be an offence if the person was supplying the product for gain.
Lyn Brown
One of the original recommendations of the ACMD was that the Home Office should redraft clause 5 to exclude social supply, and that is what our amendments are designed to do. I note that the NPS expert group, which recommended a blanket ban, also stated that social supply could be excluded from that ban. The reason for this—we were heading in this direction in the last debate—is that I am told that it is not unusual for a number of young people to club together, and for one person to buy the substances and distribute them among their friends. The crime survey for England and Wales 2014-15 found that around a third—34%—of those using NPS got them from a friend. The reality of drug experimentation, particularly with young people, is that it is social behaviour in a group. It is common for one individual to acquire the substances to be taken by the group. I am of the view that the difference between a young adult purchasing drugs on behalf of a group for an experimental night out, and a professional drug dealer peddling potentially dangerous drugs for profit, is enormous.
Mr Burrowes
I hear the point that the hon. Lady is making, but how does she make that distinction? No one has the label: “I am a professional drug dealer” on their head. I have represented a number of drug dealers, and they may well be quite young and look very innocent, but they can be guilty of supply, whether social or commercial. Either way, they are plying their evil trade.
Lyn Brown
I accept that. I am not a learned person, and I have never defended a drug pusher, so I am quite new to this. My guess is that the way we would do this is to look at quantities—to consider the amount of drugs that somebody had on them and the group of people that they were clubbing with. If I had five poppers with me and I was clubbing with another four friends, I think that that would suggest that there was social supply going on, rather than a drug dealer making a huge profit.
Mr Burrowes
Is not the point that it is about enforcement and the police being able to take a view about what they find, so that they can decide whether the evidence amounts to supply and whether they want to take prosecution further? When they are dealing with the scenario you are describing of a bunch of friends passing round laughing gas, they would have to take a view on how far they would take it. We need to have that discretion in enforcement rather than putting it in the Bill, which could have unintended consequences.
Lyn Brown
I accept what the hon. Gentleman is saying. I think he was in the cannabis debate we had in Westminster Hall two weeks ago—[Interruption.] He was not; I am sorry. In that debate, I raised the issue of equity: somebody might be done for cannabis possession in West Ham but not in West Norwood, because police forces up and down the country take very different views about enforcement in their patch. It is about the way in which they enforce these matters. For me, the law is the law. I want equity across the country in the way in which things are dealt with; I do not see why there should not be equity across the country. I hope that helps the hon. Gentleman.
The clause as drafted makes no distinction between social suppliers and large-scale commercial suppliers. The ACMD is worried that that is disproportionate, and I probably agree. I know there is an argument that social supply is an important part of the supply chain of those drugs, and therefore it ought to be included within the reach of the Bill. Although Home Office research shows that a third of NPS were obtained through a friend or colleague, other surveys of young adults who are clubbers, such as the Global Drug Survey, have different findings that show a much higher level of internet buying of psychoactive substances.
Social suppliers are at the very end of the supply chain. I hope that this legislation, which I know we are going to pass, will enable us to disrupt and break up the immoral organisations that sell drugs to social suppliers: the head shops, the internet sites and, ultimately, the drug producers. We can reduce the social supply without criminalising young people who may not even be aware that they are breaking the law. A criminal record is one of the most harmful and life-limiting penalties we can levy on a young adult. A conviction for drug possession is not well regarded by educational institutions or potential employers. A conviction for drug supply has potentially far worse consequences, as it is rightly regarded as a much more serious offence.
Without a well-funded, comprehensive education and communication programme, there will be plenty of confusion about the legal status of NPS. It will take years to completely remove the dangerous marketing misnomer of “legal highs” from ordinary language. There is bound to be confusion about drugs that are legal to possess but not to supply, import or export, if only because they are new and unfamiliar to our legal framework. The same ignorance cannot be claimed for the drug pushers, professional drug dealers and producers who are the people we really ought to be going after.
Our amendment would add “for personal gain” to the end of the clause. That is similar to the way financial gain is considered an important factor in the sentencing guidelines for drugs controlled by the Misuse of Drugs Act 1971. Those guidelines suggest that those who make substantial gains ought to be considered, for the purpose of sentencing, to have played a leading role in supply. With that careful wording, prosecutors would still be able to prosecute individuals for selling to people they happen to know for the sake of personal profit. Small-scale, local criminals could still be punished for bringing harm to their communities, but genuine social suppliers, who are ultimately the users of the drugs, rather than the people pushing them, would be excluded.
We tabled amendment 49 to clause 7 to have the same intended legal effect as our amendment to clause 5. The same principles that govern the prohibition of supply, which is set out in clause 5, should also apply to possession with intent to supply, which is set out in clause 7. I note that the Scottish National party tabled a similar amendment, which also has the intended effect of excluding social supply from the scope of the Bill. I am quite happy to work with the SNP and the Government to work out which formulation would most effectively exclude social supply without creating easily exploitable loopholes. I firmly believe that we should be working on this problem together.
Steve Brine (Winchester) (Con)
I am listening carefully to what the hon. Lady says. Is the “for personal gain” that she suggests should be inserted into clause 5 consistent with the wording that would appear in, say, the 1971 Act? Has she taken advice to that effect? I appreciate that she might not have the answer at her fingertips.
Mike Penning
The provision in the Bill mirrors the position of substances that are subject to a temporary class drug order. The Bill replicates a piece of legislation that we have been using for some considerable time. The amendment would move us away from that.
Lyn Brown
But there are other things that are moving us away from that, too. The Bill does not talk about criminalising possession, so its focus is clearly on the dangerous, nasty stuff sold in glitzy, pretty packets in head shops, which are targeted at teenagers and young adults in our communities. We might not be mirroring the 1971 Act, but we are genuinely attempting to tackle the real problem of the nasty stuff on our doorsteps. We want to get to the suppliers and get this stuff out of our communities, but we should not criminalise young people who may be completely unaware that the “legal highs” that they have been taking are in fact illegal.
Andrew Gwynne
I am grateful to my hon. Friend for giving way. She makes an important point about personal gain, because there could be a scenario in which prosecutors would still be able to make a clear distinction for somebody who is clearly profiting from the sale of a currently legal high, even if they happen to know the person to whom they are selling on a social basis. That is an important distinction that prosecutors ought to be able to make.
Steve Brine
This is where I am on this: I understand exactly what the hon. Lady says, but one could intentionally supply a substance to another person socially and it could still be for personal gain, because they could still make a few quid out of it. Therefore, a prosecutor might struggle with that distinction. I am interested to hear the shadow Minister’s view on sentencing guidelines.
Lyn Brown
I think the hon. Gentleman is absolutely right. We need to be clear in this Committee about who we want to target most. If we can make that clear, we might stand a chance of the legislation producing more than just five prosecutions and making a real impact on the “legal highs” that are out there. We should be going after those who are flooding our communities with invidious substances and tackling the real cause of the problems on our streets.
Mr Burrowes
On personal gain, do we not also want to proportionately tackle people who supply laughing gas to friends at school? They may not be the big people who earn lots of money, but they may gain by being able to get themselves an extra bit of laughing gas or by feeding a habit. They are all part of this supply chain. I would not want my children to be exposed to suppliers, whether professional drug dealers or just people who shift out this bad stuff in schools.
Lyn Brown
I accept that. Had I been lucky enough to be a mother, I would be saying exactly the same thing. Nevertheless, the kids in school who are supplying the laughing gas are getting it from somewhere, often from someone who is also giving them other stuff that they want to have pushed in the playground and in the streets. I am glad to see that the Bill will tackle offences in schools that affect children. We have also heard that there will be a good and effective education programme that will help children to say no to whatever substances are being pushed. I am genuinely pleased to hear that.
Carolyn Harris (Swansea East) (Lab)
Does my hon. Friend agree that we must also look at extending such measures to the vicinity of children’s homes where there are vulnerable young people, especially given the tendency for grooming to become the next stage in taking these hideous substances?
Lyn Brown
I understand that we will come to that later in the Bill with an amendment tabled by the hon. Member for Enfield, Southgate, who has been testing my thoughts on the legislation. I look forward to hearing from him on that.
As I have stated, a similar notion to the one I have been expounding already exists in the guidelines for sentencing under the 1971 Act. I would like to be assured that the Minister will work with the Director of Public Prosecutions to ensure that prosecutions are brought only when there is a clear public interest, which I would suggest there is not in the case of many social suppliers. I would find some reassurance in knowing that the Government will do what they can to ensure that the Bill is intelligently enforced.
Andrew Gwynne
It is a pleasure to follow my hon. Friend the Member for West Ham, with whom I agree that amendments 46 and 52 are so similar as to be almost indistinguishable. I very much hope that the Minister will consider adopting them.
I welcome this moment of harmony between Labour Members and our colleagues north of the border. Both amendments make a pertinent point: although it is right that the supply of existing drugs is considered an offence even if the supplier is not supplying them for personal gain, we should be very wary of criminalising those who are simply part of, say, a small group of individuals who have conspired to obtain psychoactive substances. That point was well made by my hon. Friend the Member for West Ham.
We are still in the early stages of controlling psychoactive substances. We should start from a presumption of ignorance for those not seeking to profit from the flow of such substances. My hon. Friend is absolutely right—I am sure that she does not speak from personal experience; she keeps protesting, so we will take her at her word—that the reality of drug experimentation, I am led to believe, is one of shared experiences. There is a qualitative difference between a group of young people procuring substances for shared use and a profiteer on the high street. The way in which clause 5 is currently drafted makes no distinction between those people and large-scale commercial suppliers; I have to say that that is just wrong. It is true that sometimes friends can be part of a supply chain, but they are right at the end of it. We should not, at this stage at least, impose a criminal record on a young person who gives some of these substances to their friends.
The Labour party is fully supportive of the principle of criminalising those who seek to make money from this pernicious trade. When someone is in the business of selling dangerous substances, we can assume they will be following developments regarding the illegality of their work, so I am firmly behind clause 5 in a general sense. Nevertheless, I urge the Minister to consider very carefully the fact that the amendment is intended to adopt a principle included in the 1971 Act: one of “personal gain”. Prosecutors could then still make a distinction regarding somebody who quite clearly profits from this trade, even if, as I said in an intervention, they happen to know the customer in a social capacity.
I note the reasoning behind subsection (3), and I approve of it. It must be made clear that the substance not being of a psychoactive nature is not a defence in itself if the supplier intimated that the substance would have such an effect, notwithstanding the fact that he or she would have no doubt trading standards on their case.
I urge the Minister to think carefully about this. The point made by my hon. Friend and, indeed, echoed by the SNP amendment is that we need to tread very carefully, so that we do not end up criminalising young people for the sake of it. We want to tackle the real issue, which is the supply of the psychoactive substances we want to ban.
Owen Thompson
I very much agree with the comments from Labour Members. It is not the intention behind any measures in the Bill to target these small groups of people. The Bill is very much aimed at those who put these substances in the marketplace and on high streets on a larger scale. That is the reasoning behind our amendment. If there are drafting issues, it is surely not beyond expert drafters, of whom I am not one, to come up with a form of wording that encompasses the aims of the three amendments we are discussing, while countering some of the issues raised by Government Members.
Lyn Brown
Does the hon. Gentleman agree that the Government have opened the door to this by not wanting to prosecute possession? The Government themselves are therefore saying that they want to get to certain classes of pusher and of people involved in psychoactive substances, not individuals who just possess a drug.
Owen Thompson
It largely comes down to another unintended consequence. We are not looking to target those individuals or small groups of friends, whatever the circumstances happen to be, who are not the object of the Bill. It is a question of how we capture that in a way that leads to successful prosecutions where necessary but manages to support people where it is not the mass-scale issues we have been talking about.
The amendment is a probing one. We will not push it to a vote, but I urge the Government to use it as an opportunity to seek an alternative and look at how best we can manage this aspect in a way that meets the genuine concerns raised by Government Members, while protecting young individuals who may find themselves charged with supply when, in fact, it is what anyone else would see as personal use.
Lyn Brown
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 6, in clause 5, page 3, line 14, leave out from “subject to” to end of line 15 and insert “section (Exceptions to offences) (exceptions to offences).” —(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 5, as amended, ordered to stand part of the Bill.
Clause 6
Aggravation of offence under section 5
The Chair
With this it will be convenient to discuss the following:
Amendment 48, in clause 6, page 3, line 43, at end insert—
‘(8A) Condition D is that the person who committed the offence knew, or had reason to believe, that the consumption of psychoactive substance would cause the person consuming the substance harm.”
Makes it an aggravating factor to sell a substance which the person knew or suspected to be harmful.
Amendment 55, in clause 9, page 5, line 26, at end insert—
‘(2) In sentencing, account shall be taken of the relative harm associated with the psychoactive substance that was the subject matter of the offence”
This amendment seeks to ensure sentencing is commensurate with the potential harm done by the substance involved.
Lyn Brown
We have tabled these amendments to address concerns about disproportionate sentencing. I raised this issue on Second Reading, and it figures heavily in the Home Affairs Committee report, which concluded that
“there is a lack of clarity in the Bill with regard to the relative harm associated with different types of NPS and the appropriate sentence commensurate with the offence.”
Amendments 47 and 48 would make it an aggravating factor to supply a psychoactive substance that the supplier knows, or has reason to believe, is harmful.
Under the 1971 Act, sentences are linked to the harm caused by the drug possessed, supplied or produced. The more harmful the drug, the harsher the maximum sentence. For example, someone prosecuted for possession with intent to supply a class A drug such as heroin could potentially receive a life sentence. The maximum punishment for possession with intent to supply a class C drug such as anabolic steroids, however, is 14 years. There is judicial discretion in applying individual sentences, but the general approach of linking to relative harm is important.
The Bill represents a radical departure from previous attempts to control drugs because it legally decouples controlled substances from an independent and objective assessment of the harm they cause. We understand why that might be appropriate. The process by which the ACMD determines the harm of a substance can be lengthy and resource-intensive, which is precisely why the Home Office cannot keep up with the illicit market. It is difficult to introduce a concept of harm in the Bill without denying the Home Office the tools it needs to address the central problem.
However, by introducing the concept of harm in clause 6, which exclusively addresses statutory aggravating factors, I do not believe we would hamstring the Home Office or prosecutors. Prosecutors would not have to prove a substance’s harmfulness to secure a prosecution for supplying, producing, importing or exporting a psychoactive substance; they would only have to demonstrate that the individual had reason to believe that the substance was harmful in order to establish an aggravating factor and a harsher punishment.
Lyn Brown
Just as importantly, the Home Office and enforcement agencies would still be able to control substances without having to prove that they are harmful. This amendment would therefore not place the authorities one step behind the market, which is the problem the Bill is designed to solve.
Section 1 of the Drugs Act 2005 included aggravation within its scope. I understand that this is hardly used. Does the Minister know how often it has been used successfully in court? He may seek inspiration on this one, or I am happy for him to write to me with the answer.
Lyn Brown
The greatest benefit of the amendment is that it would formally recognise that someone ought not to receive the same sort of punishment for supplying a relatively harmless substance as someone supplying a substance which they ought to know could be very dangerous. It keeps the traditional link between harm and sentencing, which is an important principle, without wrecking the Bill.
Andrew Gwynne
My hon. Friend makes an important point on the issue of harm and sentencing. We probably all agree in the Committee that it should be the intention of the law that the more harmful the substance being supplied, the harsher the sentence should be for that supply.
Lyn Brown
Absolutely. I think that were this included in the Bill it could have a deterrent effect on those involved in supply and change the nature of the market towards less harmful psychoactive substances. I note that the Scottish National party has an alternative amendment which seeks to achieve a similar end. I will repeat what I said when we found ourselves in the same situation when discussing how to exclude social supply: I am very happy to work with other parties and with the Government in order to ensure that our shared goals are reached. I hope that they take this offer in the serious manner in which it is intended.
I look forward to the Government’s response with interest. They will know that this is an issue which has exercised supporters and opponents of the Bill alike, and that if a way round the problem can be reached, we ought to grasp it. Our amendment has the potential to bring even more consensus to the Bill.
Owen Thompson
Apologies for my slightly delayed return; I had to act as a Teller for the vote that has just happened. Our amendment 55 is an amendment to clause 9 not clause 6, although it does fit nicely with those that are here. Our approach is to look to ensure that there is a genuine protection in the concept of relative harm, as the shadow Minister mentioned prior to our suspension, and that the associated psychoactive substance is the subject matter of the offence, so that we do take account and any sentence handed down is relative to the offence. I accept that different sentencing regimes are in place within Scotland and the rest of the United Kingdom and I appreciate the points that the Minister will, I am sure, be making about that.
Our amendment is a probing one, but the fact that it mirrors those tabled by the Opposition suggests that the intent behind the amendments is consistent, regardless of which part of this island we happen to be presenting them from—[Interruption.] These islands. I apologise. I suggest that, as the Bill progresses, due consideration is given to the intent behind the relative harm aspects mentioned in the amendments.
Mike Penning
I thank colleagues for their contributions. The last point raised by the shadow Health Minister, the hon. Member for Denton and Reddish, is probably the most difficult for me, not least because we would be moving away from the blanket ban. That is something that we have tried to introduce for many years. I fully understand the way in which the courts have historically looked at drugs sentencing, but this is new. However, the principle should not be any different. I highlight the fact that I will correspond with the Sentencing Council, as I alluded to earlier on. The situation in Scotland and Northern Ireland is different, but I am sure that they will follow that lead, not least because of the work the Scottish Government have done.
I fully support the principles behind the amendments, and it is clearly right that the courts should take account of the harms and the type of offence, but I feel that this is very much a matter for the independent Sentencing Council. The aggravating factors proposed in the amendments are already broadly covered by the Sentencing Council’s guidelines for drug offences, which we will be replicating. I take the point that my hon. Friend the Member for Enfield, Southgate made about the speed at which the Sentencing Council may need to move, and the speed at which we in Government need to move to give it the facts it needs to make decisions.
The process will be an evolutionary one. We do not want a young person—we keep referring to young people—or a person who had a small amount of a substance and sold it on to someone else because they were broke to be treated exactly the same as a drug dealer who has imported two tonnes of the stuff in a container through one of our ports. Clearly, in sentencing, that would be wrong. I am committed to writing to the Sentencing Council—it already knows that I am going to do this—to say that we expect it to take into consideration not only what the Committee and both Houses decide, but the relevant parts of the Home Affairs Committee report. The part that we have been discussing, in particular, is enormously helpful as we move forward. We do not want people to be treated differently under the law, but we want dealers, as we understand dealers, to be treated differently.
I cannot agree that we should move into the territory of harm, because to do so would completely damage the principle of our thinking. I accept that that thinking is completely new, and it will be quite interesting for the courts, the Crown Prosecution Service and the Director of Public Prosecutions. It is important that the Sentencing Council does its job in England and Wales, and that a similar thing happens in Northern Ireland and Wales. I noted the agreement of the hon. Member for Midlothian and the hon. Member for West Ham on that; when the hon. Gentleman suggested that it would be appropriate, there was a nod from Her Majesty’s Opposition. I have taken that on board, and I will write to the Sentencing Council. We could work together on the content of the letter.
Lyn Brown
I am grateful to the Minister for stating that he agrees with the principle behind the amendments and that he will write to the Sentencing Council to urge it to take note of what the Committee and the Home Affairs Committee have said. That is very welcome, and I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Burrowes
I beg to move amendment 40, in clause 6, page 3, line 20, leave out “or C” and insert “, C, D or E”.
Mr Burrowes
The amendments particularly focus on sentencing, on the aggravating factors when someone is convicted under the Bill and on whether there should be a particular focus on those who supply psychoactive substances to children outside accommodation for vulnerable children. They seek to put those factors on the same footing as supplying in the vicinity of a school.
If one thinks about the purpose of including a statutory aggravating factor applying to those who supply drugs in the vicinity of a school, which is in this Bill and in the Misuse of Drugs Act 1971, although we are dealing with new types of drugs, the principle is the same whether it relates to a controlled drug or a psychoactive substance. If someone is plying their trade outside a school, Parliament takes the view that that is a statutory aggravating factor that does not need to be left to non-statutory guidance from the Sentencing Council. We make it clear that that is an aggravating factor that will lead to an increased sentence.
The amendments seek to tease out from the Minister why there should be a distinction. We are considering psychoactive substances, so we have to look at where they are being pushed and where they are subject to wider abuse and exploitation. That is why the amendments particularly focus on extending the statutory aggravating factor to supplying outside residential children’s homes and supported accommodation such as hostels, foyers or night stops. When dealing with such accommodation, Committee members will know from their constituencies and wider knowledge that they often house vulnerable people who can be prone to other forms of exploitation. Substance misuse, particularly of psychoactive substances, can often form part of that.
The amendments refer to accommodation for vulnerable children in order to capture both residential children’s homes and supported accommodation in which local authorities place children under the age of 18. Evidence that has come before all-party groups and no doubt Ministers suggests that such children in such accommodation are more at risk of exploitation than others. It could be argued that they are more at risk of harm than those affected by the supply outside schools, because of the other types of exploitation and abuse that go on in these types of accommodation.
References are also made in the amendments to different aspects of residential care and why children are at particular risk. The Children’s Commissioner has found that a disproportionate number of children who are sexually exploited are living in residential care. Children at a high risk of sexual exploitation also run the risk of exploitation relating to drugs. The all-party parliamentary group on runaway and missing children and adults’ inquiry highlighted the targeting of children’s homes by perpetrators due to the abuse and high vulnerability of such children, which is why the amendments seek an additional statutory aggravating factor. Children in care often lack the shield of a family to protect them from risks, so 16 and 17-year-olds and others are at particular risk of abuse, whether related to drink, drugs or psychoactive substances.
In addition to children in care, vulnerable 16 and 17-year-olds may find themselves homeless or at risk of homelessness but do not become looked-after children. In that zone, they are prone to having complex needs, whether in relation to housing, substance misuse, including drugs, mental health issues, contact with the criminal justice system or wider exploitation. That is why the amendment seeks a statutory aggravating factor. Why not leave it to the Sentencing Council guidelines, which include the
“targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18”?
Non-statutory aggravating factors are already in the guidance.
We have to ask whether supplying to children outside a school is worthy of a statutory aggravating factor. The amendment would amend both the Bill and the Misuse of Drugs Act so that they are consistent with each other. Parliament needs to take the lead, as we did with the Modern Slavery Act 2015, which looked at many areas of exploitation, particularly the exploitation of children. Now is the time to look at the body of evidence and see that the particular vulnerability for children is not so much in schools, where there is more of a protective shield and statutory agencies are trying to prevent things from happening, but away from the eyes of many people. In an area that is sadly subject to exploitation, there may well be a need for Parliament to get on the front foot and ensure that there is statutory provision. That is my position; I hope the Minister considers it seriously.
Lyn Brown
I have enormous sympathy for the motivations that drove the hon. Gentleman to table the amendments. One of my first jobs was working in a children’s home, so I know just how vulnerable children can be. I also know that he has the support of the Children’s Society, which has been helping to make childhood in Britain safer for more than 100 years and is a fine organisation.
The Children’s Society has highlighted the relationship between new psychoactive substances and exploitation. Sometimes, that exploitation is economic, with reports of drug dealers forcing young men to work for them in order to pay off debts they that have accumulated by trying NPS. Sadly, as the hon. Gentleman mentioned, we also face the problem of sexual exploitation. The Children’s Commissioner found that more than a third—35%—of the children most at risk of sexual exploitation were living in residential care.
PACE—Parents against child sexual exploitation—have demonstrated that young girls have been targeted by groomers with NPS to try to get them hooked. We are all shocked by the grooming scandals that have hit many of our cities and towns, and I am in no doubt that the people engaged in such crimes are just the sort of criminals who ought to be hit by the strictest penalties provided by aggravated offences.
I am interested to hear what the Government make of the amendments. If they cannot accept the current drafting, would they be willing to go away, think about it and come back with alternative plans on Report, because this is an important issue? Will the Minister devote special attention to making sure that vulnerable children are given specific and focused education to ensure that they have the resilience to say no to those who want to prey on them with NPS and other drugs?
Steve Brine
On Second Reading, I mentioned Baseline Training, an assessment and training company based in my constituency. Further to what the shadow Minister was saying about the exploitation of young people, Baseline gave me some truly shocking evidence before the Bill was introduced in the House. In April this year, the Hampshire and Isle of Wight drug strategy group had good intelligence that young girls had performed sex acts on men who provided them with mephedrone. There is good evidence coming from Hampshire and, I suspect, other parts of the country that backs up what the shadow Minister said.
Lyn Brown
I thank the hon. Gentleman for his intervention. I emphasise again that young people in care are vulnerable and need us as their parents, in loco parentis, to help them to say no to those who want to exploit them and prey on them with NPS and other drugs. They need support so that they can look out for themselves.
Owen Thompson
I very much agree with the principle behind the amendment. From the correspondence I have had, I know that agencies such as Who Cares? Scotland very much support the proposals. This is a particular problem, because young people in supported accommodation and the type of accommodation we are talking about require extra support, protection and help. The amendment would go a long way towards addressing some of their needs and dealing with that. I voice my support for the aims of the amendment.
Mr Burrowes
I thank the Minister for that.
The clause tries to ensure consistency on controlled drugs in relation to supply at school premises, which is understandable, but this is a landmark Bill. Professor Iverson spoke about the Bill being one of the most important and significant pieces of legislation for 40 years. With that comes a need to ensure that sentencing is appropriate to the particular substances and recognises the characteristics of certain substances. It has already been mentioned how, sadly, such substances are used for exploitation, often of children and those in particular types of accommodation and in care. Supply of substances is a characteristic of the abuse, and that is why it is right for Parliament to consider whether it wants to ensure that supply to a vulnerable child is an aggravating factor.
I concede that the Sentencing Council has non-statutory guidelines that seek to address the matter, but it is important to recognise that they are guidelines, not tramlines. As a Parliament, we have a duty to vulnerable people, where there is that power imbalance. The substances that we are seek to criminalise and to set appropriate sentences for increase dependency, create debt, stupefy children and allow them to be exploited. As a Parliament, we should have tramlines, not guidelines, and we should be absolutely clear about that.
We can say too often that we are sending out a message. We should not always send out messages with Bills, but part of this Bill is about sending a message that these substances are illegal and are not good or safe. Part of that message should relate to sentencing so that it is clear that anyone who wants to risk plying their trade to vulnerable people in the type of accommodation specified will face a hefty sentence. Those people will not be looking up the sentencing guidelines that will go to the magistrates court and the Crown court. They will not have a clue about that, but they may well get a clue that the offence has a maximum penalty of seven years or so and that they will be at the upper end of the market for sentencing.
I recognise that the Minister will consider the matter seriously and in good faith. It must be looked at across the piece, along with the relationship between drug sentencing and the Sentencing Council. The Bill is innovative, and we want to ensure that we send out a clear, stark message to those who exploit the most vulnerable. I look forward to the Minister considering the matter further at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 7, in clause 6, page 3, line 43, leave out “on prison premises.” and insert “in a custodial institution.
‘( ) In this section—
“custodial institution” means any of the following—
(a) a prison;
(b) a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre;
(c) a removal centre, a short-term holding facility or pre-departure accommodation;
(d) service custody premises;
“removal centre”, “short-term holding facility” and “pre-departure accommodation” have the meaning given by section 147 of the Immigration and Asylum Act 1999;
“service custody premises” has the meaning given by section 300(7) of the Armed Forces Act 2006.”—(Mike Penning.)
This amendment replaces the reference to “prison premises” in clause 6(8) with a reference to a “custodial institution”. It then defines a custodial institution; the definition includes adult and juvenile prisons, immigration detention accommodation and service custody premises.
Ordered,
That subsection (9) of Clause 6 be transferred to the end of line 29 on page 3.—(Mike Penning.)
Clause 6, as amended, ordered to stand part of the Bill.
Clause 7
Possession of psychoactive substance with intent to supply
Amendment made: 8, in clause 7, page 4, line 18, leave out from “subject to” to end of line 19 and insert “section (Exceptions to offences) (exceptions to offences).”—(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 7, as amended, ordered to stand part of the Bill.
Clause 8
Importing or exporting a psychoactive substance
The Chair
With this it will be convenient to discuss amendment 54, in clause 8, page 4, line 38, leave out sub-paragraph (i).
This amendment seeks to explore how we can ensure that there is no criminalisation of those who order psychoactive substances over the internet for personal consumption.
Lyn Brown
This is a probing amendment that would delete subsection 1(d)(i), which criminalises an individual for importing a psychoactive substance for personal consumption. Committee members will be aware that on Second Reading it was argued that subsection 1(d)(i) creates a troubling inequity. Although it will not be an offence under the Bill to purchase a psychoactive substance from a shop, drug dealer or website that supplies from the UK, it will be an offence to purchase the very same drugs from a website that distributes from outside the UK. That is important because the internet plays a significant role in the supply of NPS, unlike many other substances. According to the Home Office, about 6% of abusers obtain NPS over the internet, but other surveys have found a much higher rate of internet purchase of NPS. The Global Drug Survey 2014 found that 22% of its sample had bought psychoactive substances from the internet.
The inequity created by subsection 1(d)(i) is particularly worrying, because a consensus has been built around the Bill on the basis that it will not criminalise users. Unfortunately, it is hard to see how a ban on importing for personal consumption could have any other effect. In practice, it will often be difficult for purchasers to know whether they are buying from a UK-based site, so they will not easily be able to tell whether they are committing an offence. Unless amended, the law could lead to websites and sellers on marketplace sites such as Silk Road and its successors prominently advertising that they are UK-based, or perhaps foreign-based but posting from the UK, which would make a mockery of the law. Websites may also attempt to trick British users into thinking that they are transferring the drugs from within the UK by adopting a .co.uk address. The subsection is bound to create unwitting criminals. What measures has the Minister put in place to mitigate that?
I suspect that the Government may be concerned that deleting subsection 1(d)(i) will create a loophole that will make it harder for them to tackle the NPS industry, because, if the subsection were removed, UK-based suppliers might be able to claim that they are importing for personal consumption and evade the law by making lots of small purchases. If the Government make that case convincingly, I will happily withdraw my amendment as I am committed to tackling this dangerous industry. However, I seek assurance that the Home Office has seriously considered how this part of the Bill can be effectively drafted not to not criminalise users. For example, quantitative measures of personal consumption could be incorporated into the Bill to differentiate between personal and professional importation, as is the case for regulations that manage the importation and excise duty of cigarettes and alcohol.
I note that Scottish National party Members have also tabled an amendment exploring this issue, and I am sure they seek the same assurances. Just as on the issue of social supply, I ask the Minister to work with prosecutors and the Sentencing Council to ensure that the Bill does not go after the people we do not want it to go after. I include importers for personal consumption within that group.
Finally, I turn once again to the issue of the resources necessary to enforce the Bill properly once it becomes law. The National Crime Agency admitted that it has a continuing problem preventing the importation of NPS, particularly from China. The NPS expert review identified a number of challenges faced by UK border controls. Some of those challenges, such as the fact that Border Force needs greater powers to seize suspicious packages, will be addressed by the Bill. However, some of the challenges identified by the expert panel require a non-legislative response. The expert panel claims that the intelligence picture on NPS trade is very limited and that we have particular difficulty dealing with websites due to the anonymity provided by e-currencies. What progress has been made on addressing those weaknesses identified by the expert panel?
This is one of the most important issues in the Bill. If we cannot get to grips with the importation of such substances, closing the head shops is all the more likely to lead to the same drugs finding their way into the hands of professional drug dealers, including gangs.
Mike Penning
Again, I thank both the shadow Minister and the SNP spokesman for indicating that these are probing amendments, so my colleagues can relax.
The shadow Minister summed up exactly why I will not accept the amendment. We are not trying to pick on individuals who purchase these products for personal use but, as we close head shops and other avenues, there will clearly be an increase, as the expert panel highlighted. As the Minister for Policing, Crime and Criminal Justice, the National Crime Agency is my responsibility. I have been working with the NCA and other agencies, and I have particularly been working with my colleague, the Minister for Immigration, because obviously Border Force will have a crucial role.
If we accepted the amendment, the debate would be about what is personal use. During this debate we have heard about cigarettes and alcohol. My family was in the pub trade for many, many years, and there has been an issue with Transit vans—I apologise for picking on Ford—and other large vans going across to Calais and coming back full of cigarettes and alcohol. When those vans are stopped by borders, immigration and customs, the driver says, “This is completely for personal use.” That opens up a difficult area.
The amendment would make it difficult for Border Force to do the job we need it to do. As has been highlighted, we absolutely need the expertise in that relevant area. On the point that the hon. Member for Midlothian made about the difficulties that exist online, some of the expertise that we increasingly need is there, but a lot of this is organised crime, and those are the people we are after. I am absolutely determined that the NCA and the other agencies should have the powers and the expertise they need to go after those people, not the little guy who is in possession for personal use.
The difficulty in law—this has been an issue in the courts—is personal use. It is a really difficult area, and that is why I sadly cannot support the amendments. I understand fully their probing nature. I always argue that it is all too easy to build up points as a constable by picking on the little guy, when the others are the guys that we want. I assure the Committee that we have introduced the measures to allow us to get the big guys, not to pick up the little guys. We will keep a close eye on the situation, but I think we have what we need.
Lyn Brown
Has the Minister given any thought to how purchasers will know whether they are buying from a UK site? I do not think that they will be able to tell whether they are committing an offence. There will be criminals out there who will trick people into believing that they are buying from a UK site.
Mike Penning
If they buy from a UK site, it is illegal under the Bill, because it is selling. If those who run the site try to represent themselves as a UK site to sell the product, that is just as illegal as being a head shop. What we have said all the way through the Bill is that it is not legislation that is the silver bullet but education and understanding. It will be generational for some people, but that is where the proportionality that we talked about earlier in the criminal justice system, in local government and in trading standards comes in. It is important that we discuss this point, but we need to ensure that there are no loopholes and that the agencies that we are asking to look after us and the legislation have the powers that they need.
Mike Penning
I understand fully the point that the hon. Lady is making, and it is a difficult area. What I cannot do is to open up the whole Bill because of what will, I hope, be a small group of people. The likelihood of their being prosecuted in that area is very unlikely, because of everything that we have debated. Purchase and possession would be legal—we have discussed that—so there would be no illegality on the part of the individual. It is the seller or the dealer we are after. I think I am right on that point.
Lyn Brown
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 9, in clause 8, page 5, line 6, leave out from “subject to” to end of line 7 and insert
“section (Exceptions to offences) (exceptions to offences).”.—(Mike Penning.)
This amendment is consequential on amendment 11 and NC3.
Clause 8, as amended, ordered to stand part of the Bill.
Clause 9
Penalties
Amendment made: 10, in clause 9, page 5, line 26, at end insert—
“( ) A person guilty of an offence under section (Possession of a psychoactive substance in a custodial institution) is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
(ii) to a fine,
or both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum,
or both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum,
or both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine, or both.”.—(Mike Penning.)
This amendment is consequential on NC2. It provides that the new offence of possession of a psychoactive substance in a custodial institution, as inserted by that new clause, attracts a maximum penalty on conviction on indictment of two years’ imprisonment, a fine, or both.
Clause 9, as amended, ordered to stand part of the Bill.
Clause 10
Power to provide for exceptions to offences
Question proposed, That the clause stand part of the Bill.
Mike Penning
This is a technical thing, but it is important. The clause confers on the Home Secretary the power to specify exceptions to the offences in clauses 4 to 8 by regulations. As we have already debated, new schedule 1 lists certain excepted activities on the face of the Bill, so clause 10 is not required.
Question put and negatived.
Clause 10 accordingly disagreed to.
Ordered, That further consideration be now adjourned.— (Jackie Doyle-Price.)
Psychoactive Substances Bill [ Lords ] (First sitting)
Lyn Brown Excerpts(8 years, 6 months ago)
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Mike Penning
It is a pleasure to serve under your chairmanship, Mr Howarth. I also look forward to serving under Sir David’s chairmanship. Thank you for setting out so concisely how the Committee will proceed.
I thank Her Majesty’s Opposition and the Scottish National party for being so supportive of the principle behind the Bill, on which there was extensive discussion in the other place. One area that was discussed extensively in the other place is the use of psychoactive substances in prisons and other custodial places. The Lords sought to address the issue by amending clause 6 to make the supply of psychoactive substances, and offers to supply psychoactive substances, on prison premises a statutory aggravating factor. On reflection, we are content with the Lords amendment, not least because the governors and the Prison Officers Association support making possession a specific offence.
We also support the Lords amendment following the campaigning by my hon. Friend the Member for Winchester and the hon. Member for Barnsley Central (Dan Jarvis), who has spoken to me privately about this matter on more than one occasion—I can see the shadow Front-Bench team nodding. He really understands the matter and has been campaigning on it for many years, and it would be inappropriate if we did not acknowledge that.
I am pleased that my hon. Friend the Member for Winchester is a member of the Committee. He knows all too well that the substances are a dangerous and pervasive problem in prisons and other secure estates, not only for prison officers but for other staff and prisoners. Having reflected on the Lords amendment we are content to retain it; Government amendment 7 simply makes some drafting improvement so as to ensure that the measure is tight and, in particular, to provide a definition of a custodial institution.
We have concluded, however, that we need to go further, with new clause 2 introducing a new offence for a person who is in possession of a psychoactive substance in a custodial institution. I think everyone agrees that the use of psychoactive substances needs to be addressed, and it is not about just prisoners; it is about other staff who may, sadly, wish to bring such substances on to the premises, and visitors. The safety of visitors, prisoners and staff is, of course, paramount.
The introduction of a possession offence in prison would enable the police and the Crown Prosecution Service to pursue cases of prisoners, visitors or staff being found with small quantities of psychoactive substances in prison, and would support the stance that psychoactive substances are not to be tolerated in prison. The measure is fully supported across the House, by all the experts and panels, and within the Prison Service and other custodial suites. The measure concerns not just prisons, but any form of custody, particularly immigration detention centres and youth detention centres. I hope that in that way, along with the help we have had from the Lords, a simple case will be made about the possession of a psychoactive substance in prisons and other custodial centres, as opposed to in the community where it is not an offence. That is needed, to make a difference. We have listened carefully, and that is exactly what we will do.
Lyn Brown (West Ham) (Lab)
Mr Howarth, I look forward to serving under your chairmanship and receiving your guidance. This is my first outing as a shadow Minister on a Bill, and I know that I am sitting under two experienced Chairs who will make my life so much easier than it might otherwise have been. That is a plea, in case you had not worked it out.
As I made clear during my speech on Second Reading, we support the Bill’s principles and general approach. The 2015 Labour manifesto included a commitment to ban the sale and distribution of dangerous psychoactive substances. A blanket ban with listed exemptions appears to be the most effective means of beginning to tackle the serious public health problems that the drugs have brought about. During the Committee stage, we will look at the weaknesses in the drafting of the Bill, and will table amendments to try to improve it. I hope that the Government take our critique and suggestions in the constructive manner in which they are intended. We want to work with the Government, through the Committee, to make the Bill as effective and robust as possible.
The Government have elected to insert a new clause into the Bill, which will make it an offence to possess a psychoactive substance in a custodial institution. The new clause amends clause 1, which is consequential on the new offence. The Bill already contains offences of supply, and of possession with intent to supply, psychoactive substances, which apply to prisoners and staff as much as to the rest of the public. The new clause makes it an aggravating factor to supply such substances in or around a prison, meaning that the only new power would be the ability to further punish those involved with psychoactive substances. Although I share the Government’s concern about the problem of such substances in our prisons, I am not convinced that we lack enough statutes to bring charges against prisoners, staff and visitors.
I also assume that many of the prisoners in possession of and taking psychoactive substances in our custodial institutions are likely to be addicted and are possibly in prison because they needed to feed their habit. It would perhaps be better to treat such instances as a health issue rather than one of enforcement. As I have said, the Bill already contains offences of supply and possession with intent to supply in or near a prison as an aggravated offence, so I am not convinced that the addition of possession is necessary.
As I said on Second Reading, I am concerned by the findings in the prisons and probation ombudsman’s report of July of this year that new psychoactive substances had been a factor in at least 19 prisoner deaths between 2012 and 2014. Her Majesty’s inspectorate of prisons’ annual report was just as concerning. It found that the availability of new psychoactive drugs has
“had a severe impact and has led to debt and associated violence.”
New psychoactive substances are undoubtedly a real problem for our prisons, which I am sure is what motivated the Minister to table the amendment. However, neither of the reports asked for legislation to help deal with the problem. Indeed, the drugs that the reports mention as causing problems, Black Mamba and Spice, are already controlled by the Misuse of Drugs Act 1971, meaning that possessing the most problematic substances in our prisons is already a crime. In addition, the Prison Service already has powers to discipline and punish prisoners for possessing psychoactive substances though prison rules.
Both reports stress that better detection mechanisms for new psychoactive substances need to be in place. HMIP stated that many new psychoactive substances do not show up in mandatory drug tests, making it difficult for prison officers to know what they are dealing with and the scale of the problem they face. Too few drugs tests are taking place, due to inadequate staffing. The prisons ombudsman highlighted that the sniffer dogs used by prisons to detect drugs often could not identify new psychoactive substances, and that it was still waiting for X-ray body scanners to detect substances concealed in body cavities.
I understand that the prevalence of Spice in prisons can be high. Will the legislation have a deterrent effect? Is it practically possible to enforce, or will it be like handing out speeding tickets at a grand prix? Will the Minister explain what prompted his desire to introduce criminal sanctions for possessing a psychoactive substance in a prison? Does he genuinely feel that the prison system has enough resources to tackle the direct supply and demand of such substances? It does rather feel that the amendment has been tabled out of a desire to do something about the problem in our prisons because the Minister and the Government have not been able to do the right thing, which is to address the staffing and resources issues raised by HMIP and the prisons and probation ombudsman.
During my Second Reading speech, I stressed that we have to reduce supply and demand for such drugs, meaning that we need to focus on education, including education for prisoners and, I suggest, their families. The Minister’s letter to the Chairs of the Committee states that the new offence provided by this amendment will complement the work of the National Offender Management Service to
“educate prisoners, staff and visitors.”
Will the Minister update us on what changes the Home Office and the Ministry of Justice have made to the drug education strategy since July, which is when the prisons and probation ombudsman report recommended that the Prison Service should put in place a specific education programme about the dangers of psychoactive substances?
In conclusion, I am unconvinced that the new offence would provide any useful tools in tackling the problem of novel psychoactive substances in our prisons. It is already against prison rules to possess a psychoactive substance. It is also against the law to possess Black Mamba and Spice—the NPS that currently cause the most damage in our prisons. They are already banned. Custody professionals seem clear that the priority needs to be ensuring that prisons have the resources to deal with these substances and to educate their staff and prisoners. I think that makes sense and I agree with them.
Steve Brine (Winchester) (Con)
Unsurprisingly, I support the Government amendment. I will let my right hon. Friend the Minister answer directly the points made by the shadow Minister; I just want to make a couple of comments.
As I said in my Second Reading speech last Monday evening, there is unquestionably a huge problem in the secure estate. I referred to the work of RAPt—the Rehabilitation for Addicted Prisoners Trust. Before the debate, that excellent organisation sent hon. Members a research briefing, “Tackling the issue of New Psychoactive Substances in prisons”. It lays the situation out pretty starkly. As I did not last week, I will not pull my punches now. RAPt says that NPS use has quickly become widespread among prisoners. The annual report from NOMS affirms that increased NPS use among prisoners is generating high levels of debt, intimidation and violence between prisoners and is likely to be the main catalyst for the recent rise in attacks on prison staff. I will come on to my constituency experience of that in a moment. RAPt says on the scale of the problem:
“The number of prisoners using NPS varies across prisons”—
across the estate—
“but some estimates suggest as many as 60% to 90% of the prison population use, or have used, NPS.”
As the shadow Minister said, Spice seems to be the NPS of choice at the moment. It is also known as Black Mamba—I cannot ever say that without smiling—or Clockwork Orange. Some of the quotes in the report by RAPt are shocking. They include the following:
“Prisoners who had used Spice described it as being ‘like a crack addiction’ or ‘like cannabis, just a lot stronger’…Others have seriously injured themselves head-butting mirrors thinking they were being attacked…One prisoner had witnessed ‘someone bury a knife in someone’s neck [on Spice] ’cause they were paranoid’…There is also a game that is becoming popular in prisons”—
this has been reported to me—
“It is often called the…50 pound challenge. In the game, prisoners are challenged to smoke £50 worth of Spice. If they manage to smoke it all before breaking down or passing out, then they get it for free. If they fail they have to pay for it.”
We can see how this is becoming the new currency in prisons. When I first started going into prisons for my work on the Justice Committee and in my constituency, tobacco was the currency, but without question NPS are becoming the currency. I have Her Majesty’s Prison— and young offenders institution—Winchester in my constituency. As I said on Second Reading, Dave Rogers, who is a very good governor, is struggling to deal with the effects of Spice at the moment inside Winchester prison. He told me that last month there were three ambulances on the estate at one time for three prisoners who had taken NPS in the exercise yard and were unconscious. That is gravely concerning to me.
The shadow Minister says that we currently have powers. Under the Bill, simple possession of a psychoactive substance in the wider community is not criminalised, but the Government have rightly concluded that the problem is such that it requires a different approach in the context of the secure estate because it is particularly destructive there. All my experience of working inside and outside prisons is that control and order is fundamental to prison life. When that breaks down, we have anarchy and people unfortunately die. People are dying in prisons at an alarming rate. There are many and varied reasons for that, but they are dying under our care. The state is their guardian and they are dying under our care.
I completely agree with and want to restate this point made by the Minister in his letter to us:
“The introduction of a criminal offence for possession…in a custodial institution would complement the continuing work by the National Offender Management Service to educate prisoners, staff and visitors about the harms caused by psychoactive substances and…enable firm measures to be taken to punish those who possess psychoactive substances in prison.”
The shadow Minister is right to say that at the moment there is an offence that can add 42 days to an offender’s time in custody. [Interruption.] I think that the Minister agreed from a sedentary position. However, this measure takes that on much further and sends a much clearer message.
Lyn Brown
I completely agree with everything that the hon. Gentleman has said. I want to ask him, however, about education. If we are going to deal with individual prisoners for possession rather than supply—pushing—I am absolutely with him, but surely education and treatment would be more beneficial to not only the prisoner but the community at large.
Steve Brine
I was just about to come on to that; the shadow Minister is a visionary. I want to have my cake and eat it too; I want to strengthen the law in this area, but the wider challenge, as the governor at Winchester prison said to me, is that the debate today is not only about making NPS illegal and changing the law on possession in prisons. In my experience, prisoners will always want to use illegal substances. They will always want to get “loaded”, as I said on Second Reading, whether that be through a class A drug, a class B drug or NPS.
Mike Penning
The Government made a commitment in the other place during the Bill’s passage there to review the existing exemption for research activities and to strengthen it. That commitment was important and we shall push forward with it now, as we would all agree that bona fide research is a vital area. In doing so, we are following the consultation of the Academy of Medical Sciences and others, and we are confident that this exemption is necessary, sufficient and robust.
The new schedule also provides an exemption for healthcare-related activities, which I think we would all support. That is obviously very important. We do not want to make a problem for individuals. We see that this exemption has a complement in the exemption of medical products in schedule 1. In providing the new exemption we are going for a belt and braces approach, and we fully accept that that is what we are doing. I think that is very important.
New clause 3 enables the Home Secretary to add and vary a list of exempted activities in a new schedule. This regulation-making power replaces that in clause 10 of the Bill which covers the same ground, so we will effectively be removing clause 10 and replacing it with new clause 3. In the light of what we have seen in the other place, we felt that that is important. When we get to clause 10, obviously we will not move it. Hopefully we can move on, because I think this is an agreed part of the Bill. It is important that as different substances become available, the Home Secretary has the powers to add to and vary the list.
Lyn Brown
Government amendment 2 is consequential on later Government amendments, providing for exceptions for medical and academic research. One of the concerns raised by the Advisory Council on the Misuse of Drugs was about the impact of this legislation on legitimate scientific work. As the ACMD made clear, in the original drafting there was an exemption for clinical trials but no mention of exemption made for laboratory research in academia or industry.
The Academy of Medical Sciences also wrote to the Home Secretary to raise its concerns. An example picked out by the AMS is that the Bill could criminalise neuroscience researchers using psychoactive substances as experimental tools to help us better understand the causes of some mental illness. Several Members of the House of Lords raised that as an issue prior to Report in that place. Lord Rosser, who led on the Bill for Labour in the House of Lords, highlighted on Second Reading that it is of vital importance that the Bill does not
“inhibit or restrict important medical research that will help us to improve our knowledge of drugs and their impact”.—[Official Report, House of Lords, 30 June 2015; Vol. 762, c. 1964.]
I thank Lord Rosser for highlighting that, and for seeking assurances from the Government that the original clause 10 of the Bill will not inhibit or restrict legitimate research by the terms of the Bill. I also thank him for emphasising the need for procedures relating to medical research to be made exempt under the Bill. Without his diligent work, the Government’s new clause, which deals with many of the inadequacies of the original drafting, may not have been possible.
I also thank my hon. Friend the Member for Denton and Reddish, who spoke passionately on Second Reading about the need for clearer exceptions for medical research. He was absolutely right to raise concerns that the vague definition of psychoactive substances in the Bill will impede legitimate research.
Andrew Gwynne (Denton and Reddish) (Lab)
It is a pleasure to serve under your chairmanship, Mr Howarth. I am grateful for my hon. Friend’s flattering remarks. The United Kingdom is a world leader in research of this kind. Does my hon. Friend share my concern that the unintended consequence of parts of the Bill may be to inhibit some of that research? We need to ensure, therefore, that the Bill is absolutely tight, so that that research can continue.
Lyn Brown
I certainly agree. On Second Reading, my hon. Friend said:
“Would it not be a tragedy if the United Kingdom, one of the leading research nations in the world, avoided finding a cure for some awful psychiatric disorder due to our failure to include the appropriate exemptions for scientists?”—[Official Report, 19 October 2015; Vol. 600, c. 779.]
Thanks to pressure exerted on the Government, Lord Bates, who led the Bill through the Lords for the Government, wrote to Lord Rosser and other peers to state that the Government were actively considering the issue and were in discussion with the ACMD. He pledged that the Government would table amendments addressing concerns about medical research during the Commons Committee stage. His colleague, Baroness Chisholm of Owlpen, stated that the Government have no intention of stopping “bona fide research”. I am glad that the Government listened to Labour’s concerns and have delivered on Lord Bates’s promise by introducing a new clause that will specifically exempt academic activities. I absolutely support the amendments.
However, I cannot help but feel that the Government could have avoided the need hastily to draft the amendments and table some significant information if they had properly consulted the ACMD before they produced the first draft of the Bill. This has been a very quick—I would not say rushed—Bill. We had Second Reading in the Commons a week ago and here we are in Committee, and there are still issues that are yet to be completely ironed out in Committee to make the Bill enforceable in our courts of law.
We need to take into consideration organisations such as the ACMD, which consists of leading experts on drugs, many of whom work in academia. If they had been consulted on the original draft of the Bill, they would undoubtedly have spotted the problems with the Government’s original plans. The amendment could have been in the Bill from the beginning, and parliamentary time could have been spent more productively in looking at the goals of the Bill and how well the Bill will help the Government to achieve them.
Mike Penning
At the outset, I want to say that legislation is passed in Parliament by introducing a draft Bill, which is then scrutinised. I welcome the scrutiny that took place in the Lords. The reason why the Bill started in the Lords—this is probably above my pay grade—is that there are so many genuine experts there. Perhaps if it had started in this House the same amendments would have been introduced by colleagues on both sides of the House. I do not mind that; colleagues who know me well enough know that I am pragmatic.
I have a couple of points about the shadow Minister’s comments. This should have been done years ago under previous Administrations—I think we all know that. For every day that we do not do this, people are dying. I accept that it is rushed, to a degree—there was a huge gap between the Bill being in the Lords and coming to us—but it is right and proper for this House to expedite the Bill, while doing everything possible about any anomalies that generally concern groups of people, in particular on the research side. If there were any such anomalies in the legislation, I would let no one prevent us from changing things. That is why we have tabled the amendments. Unashamedly, I have already mentioned belt and braces. If we need to amend things further as we go on, we will do so, so that we do not prevent research in such an important area.
I wanted to touch on the scrutiny work done in the other House. I sat in on the debate on Second Reading and Report, on the steps of the Throne—it is a great honour to be able to do such things—and it was fascinating. One group of people was fundamentally opposed, as in our House, but it was a tiny group. We got around bits such as “Will this affect people in churches with incense?” and, once we had got rid of that stuff, we could actually ask, “Does the Bill do what it says on the tin?” and “Does it allow the research to continue to take place?” which is absolutely vital. New clause 3 would improve the Bill, and that is why we can take out clause 10. That is because we were listening, and this is the way forward.
Amendment 2 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Lyn Brown
I fear the clause gives rise to three issues, which it is important to consider. The first concerns the intended scope of the Bill and how it has apparently widened with Government drafting. The second issue is how the state can prove that a substance is psychoactive, particularly when seeking prosecution. Our amendment is based on language recommended to the Home Secretary by the ACMD, which offers a new definition of a psychoactive substance. We believe that the ACMD’s language may provide a better response to these issues than the current drafting.
The final and related issue is that we need to know whether we have the necessary resources in place to test for psychoactivity. The Committee will be aware that one concern that the ACMD raised about the drafting of the Bill is that it refers merely to psychoactive substances, whereas in previous discussions of the problem—including the impact assessment for the Bill and the expert panel report, which recommended the approach taken by the Government—the words “psychoactive substance” have always been prefixed by the word “novel” or “new”.
According to the ACMD, the prefixes of “new” or “novel” indicate that we are referring to substances that have been produced in order to mimic the effects of controlled substances but currently sit outside the controls of the 1971 Act. The ACMD is concerned that, by excluding the words “novel” or “new”, the Bill has expanded in scope beyond its intended target and is now disproportionately broad.
The Home Secretary has written to the ACMD and indicated that she thinks that the inclusion of the words “new” or “novel” in the Bill would be unworkable, as that would suggest that substances that existed before the Bill came into place ought not to be controlled. She also pointed out that many of the NPS that we want to control are not new, in the sense of being newly created; it is just that they have only recently been used for recreational purposes. For example, mephedrone was first synthesised in 1929 and “forgotten” until it was rediscovered in 2004. Its use became widespread around 2007.
However, on Lords Report, Baroness Meacher proposed that the word “synthetic” be inserted before “psychoactive substances” in order to restrict the Bill to its intended scope of drugs synthetically designed to mimic existing drugs.
On 17 August the ACMD wrote again to the Home Secretary with a series of recommendations of how the definitions in the Bill could be tightened. One recommendation was to include a definition of substance in the Bill to include the word “synthesis” and specifically to mention an effect that has a pharmacological similarity to drugs controlled by the 1971 Act. That would, it argued, cover the intended scope of the legislation.
On Friday, the ACMD wrote once again to the Home Secretary and reiterated that its recommendation was that language be used that invokes pharmacological similarity to drugs controlled by the 1971 Act. Our amendment is based on the language recommended by the ACMD.
I am sorry that I am not able to take in the information just laid before us. I will use my lunch break to read, digest and understand it. I am a woman who did not know what poppers were until two weeks ago. It is not a feasible idea for me to listen to the Minister and the debate and take in this new information.
On Lords Report, it was argued from the Government Benches that adding the word “synthetic” would be inappropriate as there are organic substances such as salvia and kratom that are both psychoactive and harmful and ought to be controlled. In the Home Secretary’s letter to the ACMD she makes a similar argument. She suggests there are substances that have long been tolerated in the absence of a more comprehensive legal framework, yet have known harms.
If these organic substances have known harms, will the Minister tell us why they cannot be controlled by existing powers in the Misuse of Drugs Act? After all, it is surely not possible for drug producers to come up with hundreds of new organic compounds and so overwhelm the authorities in the same way as they have managed with synthetic substitutes. The ACMD does not seem to be worried by a reference to synthesis and has said:
“The small number of problematic psychoactive natural products could be considered by the ACMD for control under the Misuse of Drugs Act 1971.”
We should take seriously the issues raised by the ACMD and look carefully at the language it recommends, so that we can be sure that the Bill targets as well as possible the problem that we all want it to tackle. Currently, there is much feeling that the definition is too unspecific and does not adequately define a psychoactive substance. Unfortunately, that could lead to a situation in which the Bill is unenforceable and open to legal challenge on whether a substance is psychoactive.
I understand that the latest letter from the ACMD to the Home Secretary, published last Friday, suggests a more objective, technical definition with reference to specific groups of psychoactive drugs. Many substances in those groups have been tested and researched and those found to be harmful have already been controlled under the Misuse of Drugs Act 1971. Including a specific list of classes or groups of substances that are associated with psychoactivity and harm, as in the Misuse of Drugs Act, makes it more likely that new related substances will have the same psychoactive capability.
On rereading amendment 43, I wonder whether two different interpretations are possible. The possible ambiguity is in what the phrase
“identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act”
might refer to. My initial understanding was that it referred to the pharmacological response or the chemical response—that is, a substance would be controlled if it produced a response identical or similar to the responses produced by substances controlled under the MDA. However, I wonder whether the phrase could refer to a compound, and so imply that a substance would be controlled if it produced any pharmacological or chemical response and is identical or similar to substances controlled under the MDA.
If interpretation one is correct, the clause captures substances according to their effect, which is what I would have expected; but if interpretation two is correct, the clause would seem heavy-handed as, in principle, it would capture a benign substance that had only a limited effect but happened to be similar to a drug controlled under the MDA. Many exclusions might then be needed. If interpretation one is correct, the approach would capture all substances the ACMD has dealt with to date. Also, I would have thought that adding an inclusion list to the definition of psychoactive drugs would make it easier to manage an exclusion list, as well as helping on the resources required for that.
The Minister will see that I am genuinely struggling on this: we all want the legislation to work, but unless the definition is strengthened and underpinned with ways of testing psychoactivity, the Bill might not result in successful prosecutions or controls. What response does he have to the difficulties I have outlined? If he will not accept the amendments, will he give this matter full consideration before Report and Third Reading?
These are not party political concerns but concerns that emanate from a desire to see this Bill have a proper effect and safeguard all our communities. I genuinely believe that we do not have this matter right as yet, because major loopholes might emerge as attempts are made to prosecute the producers and suppliers of these pernicious drugs.
I now move on to the issue of proving that a substance is psychoactive. I am sure that the whole Committee is aware that the ACMD has written to the Home Secretary warning her that we will have to rely on proxy measures of psychoactivity, such as in vitro neurochemical tests, to prove psychoactivity, and again these tests “may not stand up” in court. It could result in a very resource-intensive forensic strategy and legal costs could well rise due to the need for expert witnesses, who obviously may disagree with each other. In vitro tests—that is, tests carried out in glass test tubes—are not conclusive and some substances that seem to be psychoactive in a test tube have been found not to be psychoactive in vivo, that is in humans. A conclusive test of psychoactivity would require randomised tests on human beings for definitive proof, and obviously that is fraught with difficulties.
I suggested on Second Reading of this Bill that we should take the ACMD’s warnings seriously. There have been only five prosecutions in Ireland since similar legislation was introduced in 2010. Police in Ireland admit that one of the reasons that there have been so few prosecutions there is that it is difficult to prove psychoactivity. Detective Sergeant Tony Howard from the Irish Drugs and Organised Crime Bureau told the BBC:
“We are relying on scientists to assist us with these prosecutions and, unfortunately, they haven’t been able to provide the evidence to us.”
We need assurances from the Government that they are making good progress with the ACMD in resolving this issue. Without the credible threat of prosecution, it will be much harder to disrupt and break up the supply chains.
Amendment 43, which I remind the Committee is based on an ACMD recommendation, would define a psychoactive substance as
“a compound capable of producing a pharmacological response on the central nervous system or which produces a chemical response in vitro, identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act 1971”.
It is my understanding that one of the benefits of this definition is that it would be harder for defendants to challenge proxy evidence of a substance’s psychoactivity, because legally psychoactivity would be defined by proxy indicators. It is important that the Minister outlines why this wording would not be more legally robust than the current wording, because psychoactivity is, after all, right at the heart of the Bill.
If the definition of psychoactivity is limited to the known drug groups, we know that the resources required would be more manageable, and a series of simple biological tests could be done on known targets to indicate the drug group of a substance. According to chemists and toxicologists, this is
“run of the mill profiling”.
Thus, a library of known compounds could be built up and additional testing would only be required where the law was challenged. Leading chemists, including Professor Les Iversen, assure us that it is highly unlikely that new substances will be found that fall outside the known drug groups. If the Minister cannot accept the limitation to known drug groups, I would appreciate his telling the Committee why that is and outlining his difficulty with such a limitation.
Finally, I will move on to the issue of resources needed to test for psychoactivity. The Government will recognise that the proposals in the Bill are not immediately cost-neutral. As we have already seen, this clause gives rise to the need for neurochemical tests in order to prove the psychoactivity of substances. These tests need to be paid for, presumably both by the prosecution and defence teams in any court case. The Forensic Science Service, a public body, was abolished in 2011 and what we now have is a patchwork collection of commercial forensic science providers.
Carolyn Harris (Swansea East) (Lab)
With some laboratories charging up to £100 per test for each individual product to be tested, would my hon. Friend agree that trading standards would need extra financial resources to make any future legislation viable?
Lyn Brown
I certainly agree with my hon. Friend. The expert panel on new psychoactive substances make it perfectly clear that those forensic science providers will only take on the work if they consider it commercially viable. The state will have to pay competitive rates if it wants to test for the psychoactivity of drugs. I would like the Minister to assure us that the burden of paying for these tests will not fall entirely on the prosecution services or local government. The Bill is a radical addition to our drugs control policy and the Home Office has a responsibility to ensure that it is not acting as a drain on already depleted resources at the CPS. Local authorities and police forces may also want to test for psychoactivity before pursuing action against local suppliers. They too need support in this area.
In the Home Secretary’s letter to the ACMD she argued that data sharing in the police and forensic community would be the key factor in the forensic response to the Bill. She also pledged that the Home Office would drive for the mechanisms to ensure data is shared efficiently. I would like to ask the Minister what progress is being made on this front. We do not want unnecessary duplication adding to the expense of enforcing the Bill, nor do we want prosecutions not be brought because prosecutors do not have the same knowledge of a psychoactive substance as a police force or indeed the Home Office.
The Home Affairs Committee report on the Bill highlighted a number of concerns regarding the expenditure needed to achieve a prosecution. The Chartered Trading Standards Institute argued in its written evidence to the Committee that proving psychoactivity in order to gain prosecution would require
“rigorous scientific testing and analysis to obtain a toxicology report detailing the specific chemical components found in the drug.”
That point was made earlier by my hon. Friend the Member for Swansea East. The CTSI estimated that the approximate cost would be greater than £100 per substance to conduct a basic test. What is more alarming is that typical head shop investigations will require multiple tests to be conducted due to the content of NPS being different in different packets of the same branded drug. One packet of something exotic bearing the same name as another packet will contain different compounds. That just will not stand up in court.
Owen Thompson
A Scottish Government expert review group that reported in February this year included a recommendation that a toolkit be developed to support trading standards staff tackling NPS in our communities. Does the hon. Lady agree that it would be particularly useful to roll that out, so that we can ensure the best possible approach, consistent across the country?
Lyn Brown
The hon. Gentleman is absolutely right that data sharing across police forces is essential to ensure we get the right information and can prosecute cases where possible. Police Scotland has voiced similar concerns, stating that a successful case would require evidence from a qualified expert with experience of working with NPS who could identify the substance and prove its psychoactivity. Furthermore, Police Scotland also states that every case that involved NPS offences would require the suitably qualified medical expert to provide evidence in court, which would also incur a cost.
The critical issue in the Bill—the definition of psychoactivity—still has to be addressed, although I suppose there might be something in the letter that has been submitted to the Committee. The ACMD published further advice on 23 October and is still of the view that
“the current definition on the face of the Bill is too unspecific and does not adequately define a psychoactive substance”.
Essentially, the Home Secretary has rejected any qualification of psychoactive substances—for example, by including only synthetic products. The definition in clause 2 remains as originally drafted, without reference to harm, to which we will come later.
Much of the detail of the Government’s discussions has not been published, so the reasoning behind their position is not entirely clear to me. They have not accepted any suggested amendment to the wording of clause 2. It is unfortunate that there has been no agreement between Ministers and the statutory body of expertise, the ACMD. I fear that that risks destabilising the overall soundness and public perception of the proposals, by which I mean the ability to prosecute successfully. If the definition remains largely unchanged, there will be consequences relating to harm measurement, proportional sentencing and credible messaging. If the criminal sanctions apply equally to substances of widely different harm thresholds, that will remove the possibility that sensible and honest messages about health harms can be created.
We tabled our amendments not to be difficult or party political but to try to secure clarification from the Government on the intended scope of the Bill. We need to know that they are certain that they can legally prove that a substance is psychoactive and secure prosecutions. We want to know what provisions they have made to ensure that the necessary funds and resources are available to conduct extensive and expensive tests for psychoactivity.
Mike Penning
I thank the shadow Minister for her detailed and extensive comments, which I take in the context in which they were delivered.
I want to address some of the points that were made. The SNP spokesman mentioned the idea of a toolkit—we do not need to reinvent the wheel every time, do we? In England, local authorities, which have responsibility for public health, spend £830 million a year on tackling drug and alcohol misuse. That is 30% of the national budget, which makes it logical to address the issue.
The explanatory notes set out that the measures will be cost-neutral to the police and local authorities. Let me use some anecdotal evidence to show why. Take, for example, Belfast and Lincoln, two very diverse communities where head shops were banned using local powers. I still do not understand why other local authorities have not used those powers, but there we are. The cost and type of policing in those communities changed dramatically, without the Bill, just by banning head shops. Belfast, which I know all too well from my time as a Minister in the Northern Ireland Office, was transformed simply by people saying, “We do not want that sort of product sold in shops in our communities because people will think it is legitimate and safe.”
I understand that there are concerns, and I know that there are different views coming back from the Republic of Ireland. I went and met the Irish Minister and his scientific experts. I asked why there had been five prosecutions, and the answer was twofold, and not exactly what we have heard so far today. In Ireland, they felt that they had got the prosecutions they wanted using powers that are also in the Bill. A huge part of the Bill has nothing to do with the CPS and the police prosecuting, but is about local authorities. What happened almost overnight after using those powers was that the head shops and the industry collapsed, because people had been educated correctly. Where the local authorities were using their powers—powers that are also in the Bill—it transformed the communities in the way we would all like to see. The Bill is not designed to pick on people who have been using these products perfectly legally and, they feel, safely; it is designed to get the really bad guys—the dealers and those sorts of people. The seven-year prison sentence is in the Bill as a last resort.
In terms of applied science and technology, the Home Office will identify and bring forward the capability throughout the UK on the forensic requirement. We are going to do that. I accept that we will have to give more detail, perhaps on Report, and we are happy to do so.
I am sorry we disagree so early in the Bill, but I have real concerns about amendment 51, which runs counter to the blanket ban. If we are going to go for a blanket ban, we are going to go for a blanket ban. If we start fiddling around the edges, that blanket ban becomes difficult, so I do not support the amendment. I fully accept the fact that the shadow Minister and other members of the Committee have not had enough time to read the ACMD’s latest correspondence. Perhaps that can be addressed on Report. The ACMD understandably moves with debate, as it moves in different areas. As I said earlier, using “synthetics” in the Bill is wrong. A blanket ban is a blanket ban. We have to get ahead the game, and that is what we have been trying to do.
I fully understand why the amendments have been tabled, and that the one from the hon. Member for Midlothian is probing, but sadly at this stage I cannot support amendments 51, 43 and 44 for the reasons I have given. If more discussion and investigation is needed, the Report stage may be a better time for that. A lot of the concerns are that we will not be able to prosecute, but we will. It happens in other parts of the world and in Ireland. There were concerns about harm, but if a blanket ban happens, we are ahead of harm, rather than waiting for harm to happen and for people to die. On that basis, I hope that colleagues will not press their amendments to a Division.
Lyn Brown
I hear entirely what the Minister is saying, and I have some sympathy, but may I push him on a couple of things? The first is the issue of the definition. I did not hear him explain why we cannot use the words “new” or “synthetic”. That would give us a better focus on the things we want to ban. Secondly, I did not hear why we were not able to put the organic substances that we know to be harmful, such as salvia and kratom, within the scope of the 1971 Act. That just seems logical. We know that those substances are harmful and we know what they are. People will not be able to graft new bits on to plants to create new organic substances—certainly not at the rate at which they have managed to create new synthetic substances.
The Minister talked about costs. I used the words “immediately become cost-neutral” in my notes, but I say gently to him that while I accept that there may be savings to the local community and the local police from banning head shops, cutting the supply and getting rid of the demand from our streets, I genuinely do not believe that those savings will be immediate. I gently suggest that one reason why there have not been more prosecutions by local authorities is that they have not had the wherewithal—the finance— to know that what they are taking to court will actually stand up. There is a cost issue that we need to look at.
The Chair
If the hon. Lady has further points to make, it might be advisable to make them at this point.
Lyn Brown
My problem is that it was such a big thing that I did with three clauses that I am worried that I have missed something and I am not getting it out. I am not sure we have got to the bottom of the evidence around psychoactive substances, whether it is provable, and whether the definition that the Government are currently going with would enable provability within the court.
The Chair
I wonder whether it would be helpful to the hon. Lady, and sensible at this point, if the Minister responded to the points that she has made. If she thinks of other issues that she wants to raise, she could do so by way of an intervention.
Mike Penning
I do not want to go round in circles, as I have made the points that I would almost certainly make again. At this point I would like to make some progress. “New or novel” substances have, according to my legal team, no legal meaning within the law, which is why we are not going with that.
Mike Penning
Ireland is a much smaller country and, if we proportionally move the percentage in population up from 5%, we would see substantially more prosecutions. I am really pleased that I went to Ireland as I was amazed at the amount of work done by local government on prevention. One reason why the measure will not come into force until April is to allow what happened in Ireland to happen here. Prosecutions did take place and were not thrown out of court; the evidence base was almost identical to what we have. We are slightly tougher, but only marginally, and perhaps learning from some of the mistakes. They have said they will probably follow us and our legislation going forward, which is exactly what New Zealand and Western Australia are doing as well.
We have to be careful not to pre-empt something that might happen but which has not happened in countries where measures have been taken. I am conscious that the measure needs to be tight and a blanket ban is needed. I am happy and confident that we will have the scientific evidence and the experts out there to make sure that we can do this. Let us hope that, before the legislation comes in, and as they did in Ireland, we get into the schools, we get into local government and talk to communities, and that we get programmes out there that we will all support to make sure, categorically, that everybody is aware not only that the substances are no longer legal, but that they have definitely never been safe and, by the way, there are severe penalties for importing, manufacturing or selling these products.
Lyn Brown
I am grateful to the right hon. Gentleman for clarification on the words “new or novel”. That is the first time I have heard that they might not have a legal standing as a definition. May I push him, therefore, on the definition and ask if he is confident that the definition in the Bill will be robust enough for us to deal with provability within a court? Secondly, may I ask him to address the issue of cost?
Mike Penning
The answer to the first question is yes; I am more than confident about that. As the explanatory notes say, the CPS is responsible for the costs in prosecution terms. We do not think that will be an enormous burden. I am responsible for 43 police authorities, and the costs of policing this type of problem in our communities is huge. Public health is obviously for local authorities. I used to be shadow Minister for public health, and the cost burden is very interesting. We have seen in Ireland that the number of people who turn up to A&E has dropped dramatically. The number of people needing rehabilitation and treatment has also dropped. Those are all cost negatives.
Owen Thompson
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Clause 3
Exempted substances
Lyn Brown
I beg to move amendment 45, in clause 3, page 2, line 14, at end insert—
‘(3A) The Home Secretary must consider making regulations under subsection (2) if she receives a recommendation from the Advisory Council of Misuse of Drugs to bring forward such a regulation in respect of a psychoactive substance.”
This would enable the ACMD to proactively request that the Home Secretary consider regulations.
On Second Reading, I asked whether the Minister had considered providing credible measures for relatively harmless substances to be excluded from the controls introduced by the Bill. That, after all, is something the expert panel envisaged as a potential part of the Bill when it made its recommendation, following the Irish model. Amendment 45 would be one way of providing such measures, as it would allow the ACMD to proactively request that the Home Secretary consider adding a substance to the exempted list.
There is broad support for the Bill across the political spectrum. However, we know one concern is that it may restrict trade in harmless substances. I put it to the Committee that if people knew it was possible to make representations to the ACMD about substances they wish to exempt and for convincing and evidence-based arguments to make their way up to the Home Secretary, the Bill might have even broader support than it currently does.
As we know, the Home Affairs Committee received much written and oral evidence about the issue of poppers. Colleagues in the SNP have tabled an amendment about them and I will have more to say about poppers in that debate.
Mike Penning
I think there is a very important debate to be had on poppers. That will be the Chair’s decision when we get to poppers—however, at the present time I did not realise we were talking about poppers.
Lyn Brown
I like help, so do not stop trying to help.
I admit that I am sympathetic to the SNP’s amendment. If the ACMD, through Professor Iversen’s evidence, is suggesting that poppers pose a low risk of harm, it would be within the scope of the Bill to place poppers on the exemption list—but I am not an expert.
John Woodcock (Barrow and Furness) (Lab/Co-op)
I am a little puzzled. Perhaps the shadow Minister or members of the SNP might be able to shed light on this. Why, exactly, is the Scottish National party putting forward amendments about poppers that would, presumably, have an effect in England but not in Scotland itself?
Lyn Brown
When we get to poppers, experts will need to assess the evidence and decide whether the case for exemption has merit. If I may link this to our discussion on the second clause of the Bill, we know that there will be significant costs in testing the psychoactivity of substances, as there will be for enforcement measures contained within the Bill. By introducing a charge on applying for exemption, the Government potentially could raise the revenue and ensure that what is left of the industry pays for its own regulation. Does the Minister think that there might be scope for that?
While we are discussing exempted substances, I want to raise a concern that is pertinent to schedule 1. Paragraph 1 of schedule 1 exempts those drugs that are controlled by the Misuse of Drugs Act 1971 from the scope of the Bill. That is appropriate, because we do not want suppliers of drugs that we know to be very harmful being subject to the lesser tariffs contained within this Bill, rather than those in the 1971 Act. As the Home Secretary herself has stated, the 1971 Act must remain at the apex of our legal controls, and this Bill ought to be considered as complementary.
I want to press the Minister to ensure that part of this legislation will not slow down the process by which NPS we know to be harmful are brought under control through the Misuse of Drugs Act. It seems that there is a danger that the impetus for action will be lost, given that this Bill will provide some measures of control of new psychoactive substances. I do not want to see a time gap between a dangerous drug hitting the market and finding its way on to the controlled substance list as a result of this legislation—particularly given the lower tariffs contained within this Bill for supply. My worry would be greatly eased if the Minister resolved to ensure that this issue is included in the Home Office’s statutory review of the Bill.
In conclusion, the capacity to exempt substances from the controls introduced by this Bill is clearly central to the Bill’s receiving widespread support. The focus of the Home Affairs Committee report on the issue of poppers has already made that clear. I hope that the Minister will give serious consideration to our amendment or to other ways around the problem. I look forward to being able to offer a reassuring response to my concerns about the relationship between this Bill and the 1971 Act.
Mike Penning
The shadow Minister would have a point if not for section 1 of the Misuse of Drugs Act 1971, which allows the council—or ACMD—to issue advice to Ministers when it considers it expedient to do so. That provision is in the Act. A protocol between the Home Secretary and the ACMD allows the council to consider drug issues without any advice from us at all. That is in the Act.
Lyn Brown
Okay, but we have tried to helpfully suggest that there might be a way of making this a cost-neutral thing with the industry, proving that a substance should go on to the exemption list because it is harmless. The Bill and the public’s acceptance of it will be strengthened if harmless substances are put on an exemptions list, as we have done with incense.
Mike Penning
That was looked at extensively by the expert panel before the legislation was introduced, and it was rejected. The panel looked particularly at New Zealand, which had already introduced a licence, basically, which is what we are alluding to—to people applying for a licence—for low-harm substances. That has not worked.
Mike Penning
No one has applied for a licence and there is basically a blanket ban. The experts, who are much more expert than I am, looked at it extensively. They examined it and rejected it and were happy with the way we are moving forward. With that in mind, I am more than happy—as I suggested earlier to the hon. Member for Midlothian—to look again at that between now and Report to make sure that I am 100% comfortable with the proposals, because I understand the hon. Lady’s passion for this issue.
Mike Penning
However, at this stage I am comfortable, unless something comes forward between now and Report.
Mike Penning
Some of them are. Some of them are genuinely and legitimately people doing business, for example, selling a certain gas that is inappropriately used by other people, such as laughing gas. The Bill is specific in that area to make sure that we protect people. We cannot protect everybody who completely ignores what a label says, but if someone is selling certain products, they will get up to seven years in prison. That is why the harshness is there at that end of the scale, although I fully understand and do not want to penalise people at the other end, who perhaps take the products—in my opinion wrongly, and I am sure that everyone would agree—thinking they are safe. We do not want to criminalise that. I hope that the hon. Lady will not press her amendment. We can look at this carefully again, if necessary, on Report.
Mike Penning
I beg to move amendment 3, in Schedule 1, page 38, line 7, leave out from “products” to end of line 12 and insert—
‘“Medicinal product” has the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 2 of those Regulations).’
This amendment replaces the definition of “medicinal product” in paragraph 2 of Schedule 1. The revised definition adopts that in regulation 2 of the Human Medicines Regulations 2012, which includes, but is wider than, medicinal products for which a marketing authorisation or an Article 126a authorisation is in force.
Lyn Brown
I rise to speak to Government amendments 3 and 4, which would replace the passages on investigational, homeopathic and traditional herbal medicine in the list of exempted substances with a single wide definition of a medicinal product. Will the Government provide further detail on the exempted substances list and the forensic strategy that underpins the Bill? Some representations, including from the ACMD, have described the exemptions list as potentially unworkable, particularly if there is no inclusion list in the definition of psychoactive substances, as recommended by the ACMD. It is possible that adding an inclusion list into the definition of psychoactive substances makes the management of the exclusion list much more manageable. I would be grateful for the Minister’s view.
Mike Penning
I am really sorry if I am looking slightly puzzled, but I did not think that we were considering these matters at the moment. I will get some notes passed to me, a service which the hon. Lady does not receive. I am puzzled.
Psychoactive Substances Bill [Lords]
Lyn Brown Excerpts(8 years, 7 months ago)
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Mike Penning
The hon. Gentleman makes a comment when he is not even in the Chamber—he should know better, as he has been here long enough.
Lyn Brown (West Ham) (Lab)
I am a little confused by the diversion from where I thought we were going. Would not a purchaser need to know that the substance was illegal when purchasing it? If so, we will need a definition of what psychoactive means. Is that not right?
Mike Penning
That is exactly the situation, and that is exactly what the Bill says. I do not understand the diversion either.
Lyn Brown (West Ham) (Lab)
The Opposition support the principles of the Bill. The 2015 Labour manifesto included a commitment to ban the sale and distribution of dangerous psychoactive substances, which is why we are with the Minister tonight.
The illicit drugs situation in the UK and throughout the world is constantly changing. Protecting young people from harm is our responsibility, even if we know that there is no silver bullet to reduce the trade in drugs. New psychoactive substances can be a significant danger to public health, and they have taken people’s lives. Jimmy Guichard was a fun-loving, sporty 18-year-old bloke living in Kent. He had heard of legal highs and decided to try them. He bought a packet of Clockwork Orange from a local head shop, and he may have taken a high dose, possibly the same as he would have done for ordinary cannabis. He had a severe reaction, suffered a heart attack and, sadly, died the next day.
Owain Vaughan was 14 when he tried a brand of synthetic cannabis with friends and was overcome by its potency. He described the effects to BBC News:
“It made me physically ill, I collapsed, I started fitting, I tried to get up, but fell straight back down and banged my head…I felt my own heart stop and I was scared.”
Unfortunately, stories like Jimmy’s and Owain’s are not isolated incidents. The Office for National Statistics reports that there were 67 deaths in England and Wales involving psychoactive substances in 2014, so the problem is clearly growing.
We do not have comprehensive evidence about the overall harm of psychoactive substances, but people have died as a result of taking these drugs. Some of the substances can cause severe adverse effects such as heart palpitations, panic attacks, hallucinations and even psychotic episodes.
The supply of these drugs is becoming an industry. They are made, marketed and supplied by unprincipled organisations for financial profit. Our understanding of the dangers of legal highs has been greatly enhanced by the work of the Angelus Foundation, and I pay tribute to Maryon Stewart, who established the foundation after losing her daughter Hester, a medical student, to the legal high GBL in 2009. Research by the Angelus Foundation has estimated that there were more than 250 head shops in the UK selling these products in 2013. According to the crime survey of England and Wales, around a third of all new psychoactive substances purchased in the UK came from such businesses. Head shops claim that they do not sell illegal substances, but Home Office tests have shown that almost 20% of packets of new psychoactive substances contain illegal drugs.
Head shops and other high street retail outlets normalise drug taking and encourage people to experiment with and use drugs. The names and packaging are designed to attract young adults to experiment, and free samples are regularly used as part of marketing strategies. The fact that substances can be bought on the high street in broad daylight without any sanction whatever gives the illusion that the substances are both safe and legal. There are hundreds of internet sites that sell these substances online, with little or no knowledge of who they are selling to. The Home Office estimates that the industry has an annual turnover of £82 million. Overall, the UK has the largest new psychoactive substances market in Europe.
As the Minister stated, drugs have traditionally been controlled in the UK through the Misuse of Drugs Act 1971, under which the Home Secretary has the power to put substances on a banned list, so long as he or she has consulted the Advisory Council on the Misuse of Drugs. Since the middle of the previous decade, that mechanism has been put under great strain by the explosive growth of new psychoactive substances. We have managed to control some of them, but let us be under no illusion—that has not solved the problem.
The relatively easy process of creating new psychoactive substances means that these new drugs are appearing on the market all the time. In each of the past six years, more substances appeared on the market than was the case in the previous year. The Home Office and the Advisory Council on the Misuse of Drugs cannot keep up because the traditional process of classifying the drugs, with its independent and objective process of assessing the overall harms of a particular substance, can be cumbersome. It is a game of whack-a-mole that the authorities are hard pressed to win. In 2011, the Government tried to deal with the problem by introducing temporary class drug orders. TCDOs allow the Government to ban the production and sale of new psychoactive substances while the ACMD gathers more information on the risk and harm associated with those drugs.
There are problems with TCDOs. First, they are inherently reactive, and there is always a time gap between a drug coming on to the market and being subject to control. The second problem is that TCDOs last for only 12 months, which puts significant pressure on the ACMD to assess the harm caused by the drug quickly. Another approach taken by the Home Office under the Labour Government was to add generic groups, rather than specific compounds, to the list of controlled substances. Although this procedure has had some success in controlling new psychoactive substances, it is clear that we are dealing with an evolving problem that our current legal framework cannot get to grips with.
In December 2013, the Government appointed an expert panel that recommended that the most effective way to deal with new psychoactive substances would be to introduce a blanket ban on the supply, importation and exportation of any psychoactive substance that was not specifically controlled or exempted. This approach, as we have heard, is modelled on legislation passed in the Republic of Ireland in 2010. There were 102 head shops in Ireland at that time, according to the Irish police force, and they have now “virtually disappeared”. The expert panel was clear that the number of clients attending drug treatment services had declined: 368 people received treatment for problems in 2011 and that number fell to 220 in 2012. Although I accept that it is too early to make a long-term judgment on the success of the Irish model, it seems to have made a start at tackling the problem.
The Bill takes up the expert panel’s recommendation and makes it a criminal offence to produce, supply, import or export these drugs. I am not so naive as to think that we are going to shut down the industry altogether, even though that is what many people would want, but by more quickly containing production and supply upstream, we will hopefully reduce the harms to young people downstream.
Stephen Phillips
Does the hon. Lady share my concern, which we need to consider when we think about the Bill, that the closure of the head shops makes it possible that the entire trade will be driven underground, that it will link itself with the illegal drug trade, and that those who might at present go on to the high street or into a garage and purchase what they think are legal highs, which may be very dangerous for them, will end up using much more serious class A and class B drugs?
Lyn Brown
I accept what the hon. and learned Gentleman says, but one of the things I find particularly repulsive is that our young people see these head shops in front of them on the high street, and then think that the shops are legal and safe because if they were not, the police would have come along and nabbed them. I will answer him later because we do need to think about what happens with an underground market.
This Bill sends out a message to young people who are unaware that these substances are dangerous. Many of those that are sold in the shops are illegal now, let alone before we ban the lot of them. As I support the aims and general approach of the Bill, I want to ensure that it is drafted and implemented as effectively as possible, so I will press the Government on several issues and worries. I hope that the Minister will take my recommendations and concerns in the constructive manner in which they will be intended.
My first point is about education. The Bill is an appropriate way to try to tackle the supply of dangerous psychoactive substances, but we need to reduce demand. Unfortunately, there is a load of misinformation about psychoactive substances. Research by the Royal Society for Public Health found that a quarter of young people aged between 16 and 24 believed that so-called legal highs were safer than illegal drugs. This is a dangerous misunderstanding, because some of the new psychoactive substances have gone on to be controlled and designated as class A, indicating that they were some of the most harmful drugs around before they were controlled. Passing this legislation has the potential to put to bed the dangerous myth that psychoactive substances are safe, but the measure will do so only if it is supported by a concerted communication and education strategy.
The Labour Administration in Wales have shown us how that can be done by putting education at the forefront of their drug prevention strategy. There is now a core substance misuse education programme in 97% of Welsh primary and secondary schools to ensure that almost all Welsh schoolchildren receive accurate, consistent and credible information about the potential harms of drugs, rather than having to rely on myths and guesswork. Labour Members have consistently emphasised the role of PSHE—personal, social, health and economic education—in reducing drug use. I have voted to make PSHE compulsory in schools, and that needs to be considered again.
Dr Philippa Whitford (Central Ayrshire) (SNP)
This aspect did not go to the Advisory Committee on the Misuse of Drugs and has therefore been put together without its advice. The use of illegal drugs has been going down not because of locking people up and criminalisation, but because of education. We all want these chemicals not to be used, but we must not overreact and not use education enough, because it is a key tool.
Lyn Brown
The hon. Lady is absolutely right; I completely and utterly agree. Education is the key to this. We need to reduce the demand for the supply.
Thus far, a mere £180,556 has been spent on education programmes on new psychoactive substances, as the Minister told the House in a written answer on 2 June. Sadly, the Government rejected Labour’s amendment to the Bill in the Lords which would have placed a statutory duty on the Secretary of State to increase public awareness and help schools to educate children about the dangers of these drugs. Let me say gently that that is a wholly inadequate response given that the Government themselves recognise that these drugs are a serious problem. If we want young people to have the resilience, the confidence and the knowledge to say no, we have to be fully committed to a comprehensive education programme across the UK.
The next area where the Minister needs to exercise care and caution is proportionality of sentencing. Under the Misuse of Drugs Act, sentences are linked to the harm caused by the drug possessed, supplied or produced—the more harmful the drug, the harsher the maximum sentence. Of course, there is judicial discretion in applying individual sentences, but the general approach of linking to relative harms is important.
The Bill represents a radical departure from previous attempts to control drugs, because it legally decouples controlled substances from an independent and objective assessment of the harm they cause. We understand why that may be appropriate. The process by which the ACMD determines the harm of a substance can be lengthy and resource intensive, which is precisely why the Home Office cannot keep up with the illicit market. It is difficult to introduce the concept of harm to the Bill without denying the Home Office the tools it needs to deal with that central problem.
It is because this Bill suggests such a radical change that we need carefully to consider the impact it will have when implemented. I am worried that we might end up in a situation where someone who is prosecuted for selling a weak psychoactive substance faces the possibility of the same seven-year custodial sentence as someone who sells a very dangerous substance. The Bill contains no classification system to differentiate between those two crimes. I fear that the proposed laws could lose the confidence of the public and the judicial system if the issue of proportionality is not looked at carefully. As the Minister will be aware, the issue has exercised the Home Affairs Committee.
I am particularly worried about the proportionality of sentencing for young people involved in social supply. It is not unusual for a number of young people to club together and for one person to buy substances off the internet and distribute them among friends, or even for one individual to sell a small amount to a friend. The Bill makes no distinction between those people and large-scale importers. We need to look at that.
Has the Minister considered providing credible measures for a relatively harmless substance to be excluded from the controls, if that is deemed appropriate? Conversely, if a new psychoactive substance proves to be particularly harmful, surely it should be removed from the scope of the Bill and controlled under the Misuse of Drugs Act. Reviewing that may be an appropriate responsibility of the ACMD.
Another issue that needs careful consideration is how the police and prosecutors can both determine and prove that a substance is psychoactive. I am sure the Minister is aware that Professor Iverson, chair of the ACMD, has previously written to the Home Secretary warning her that we will have to rely on proxy measures of psychoactivity, such as in vitro neurochemical tests, in order to prove psychoactivity, but that they may not stand up in court.
We should take Professor Iversen’s warnings seriously. Although similar legislation in Ireland appears to have been broadly successful—given the statistics I quoted earlier—there have been only five successful prosecutions. Police in Ireland have admitted that that is because they find it difficult to prove the psychoactivity of substances. We want sellers to stop selling psychoactive substances voluntarily, and for consumers to stop purchasing the drugs. However, it is hard to imagine that that would work without any prosecutions at all. The law simply would not provide a credible deterrent.
Mike Penning
I raised this issue with the Minister in Ireland, where local authorities and others can use the powers they have been given without having to go all the way to the criminal courts. This Bill also gives extensive powers to local authorities. That addresses some of the hon. Lady’s concerns, but the Bill Committee will look at the issue in more depth.
Lyn Brown
I am grateful to the Minister for that assurance. If the ban pushes supply away from the high street and increases online sales, there will be a need for resources and to look at how technology and international co-operation can disrupt supply and delivery routes. Is the National Crime Agency going to take the lead on online sellers? Does the Minister have the information to hand? Perhaps he could inform us of the plans when he winds up the debate.
Paul Flynn
The European Monitoring Centre for Drugs and Drug Addiction in Lisbon has reported that the lifetime use of these substances in Ireland before the ban was 16%, but that four years after the ban it had increased to 22%. Is it not true that almost every drug ban has resulted in an increase in usage?
Lyn Brown
I have only been in this job for two weeks, but if I had been in it for a bit longer and the Public Bill Committee was not next week, I would have nipped over to Ireland to find out. My information is that the ban has closed down the head shops. The second piece of information from Ireland is that the number of people going to hospital with the effects of psychoactive drugs has also declined. I have managed to glean those two pieces of information from Ireland. I promise that I will do more research on Ireland before the Committee next week. Even if I am not allowed to go across to Ireland—can I go?—I will certainly have a look at that. [Interruption.]
Norman Lamb
I will not take that groan personally. To follow up on the intervention by the hon. Member for Newport West (Paul Flynn), the hon. Lady may be interested to know that in Poland, where the same approach is being applied, the number of poisonings—this is about damage to young people—has gone up dramatically since the ban came in from 562 cases in 2010 to 1,600 in the first 10 months of 2014. Does that not give her cause to pause in supporting the Bill?
Lyn Brown
I thought I had said that, but I obviously did not say it well enough. However, I thank my hon. Friend for his assistance.
I understand that the ACMD has offered to work with the Home Office to try to overcome the problem of needing to prove psychoactivity, and that the ACMD believes the issue can be resolved. I look forward to the Minister informing the House about what progress is being made on that issue so that we can be assured that the Bill has the teeth it needs. The definition of psychoactivity should be at the core of the Bill, so I am rather surprised that the Government felt able to move the Bill’s Second Reading without that point being resolved. The ACMD recently met the Home Secretary, and the House really needs some detail on how the discussions are progressing.
I want the Minister to consider monitoring and evaluation. I am pleased that the Government are now making a statutory commitment to review how well the Bill works. However, it is important that we are given more details of the intended scope of the review. We need to know that we are breaking up not just the legal market, but the overall supply chain as well. Ultimately, the ban may have the effect of reducing the number of users of NPSs, but of increasing the risk for those who continue to use them. It is clear that a wide-ranging and comprehensive review, backed up by thorough and better research, will be necessary.
I also want the Minister—he can see that I have a long list—to speak to his colleagues in the Ministry of Justice to see whether the impact on prisons can be given particular attention. I am sure that he was as alarmed as I was by the prisons and probation ombudsman’s report in July, which found that new psychoactive substances were a factor in the deaths of at least 19 prisoners between 2012 and 2014. The annual report of Her Majesty’s chief inspector of prisons was just as concerning. It found that NPS
“has had a severe impact and has led to debt and associated violence.”
That is a real problem for our prisons, and we need to know that it is being dealt with.
Stephen Phillips
A point that may not have occurred to the hon. Lady arises from the two points that she has put to the Minister—the impact on the MOJ’s budget of the difficulty of proving that something is a psychoactive substance within the meaning of clause 2. That issue will inevitably have to go to a jury, and will therefore require expert evidence on both the prosecution and the defence sides. Has she considered the potential financial effects on the legal aid budget if clause 2 is not amended?
Lyn Brown
I am clearly being far too subtle. I am not often accused of that. I talked about resources and clearly we understand that that will be an issue. I thank the hon. and learned Gentleman for drawing the point out and for being so succinct.
The Home Secretary has said that the Home Office is actively considering the point about prisons and intends to table an amendment in Committee. I hope that that is still the Government’s intention. I will examine any such amendment carefully.
Mike Penning
Perhaps I was a bit too subtle as well, because I think I said that we would do that.
Lyn Brown
In conclusion, the Opposition want the best possible Bill so that young people are not exposed to these dangerous, untested substances and so that we reduce the harm that they do. I want to work with the Government to ensure that that happens. That means looking seriously at the potential weaknesses in the Bill. We will stress throughout the legislative process and beyond that this problem cannot be tackled through law enforcement alone. We need to restrict supply and demand. That means looking once again at the state of drugs education in this country, alongside reducing the overall public health harms.
Several hon. Members rose—
Cannabis
Lyn Brown Excerpts(8 years, 7 months ago)
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Lyn Brown (West Ham) (Lab)
It is a pleasure to speak under your chairmanship, Mrs Gillan. I start by thanking the Petitions Committee for scheduling this debate. I thank my hon. Friend the Member for Newport West (Paul Flynn) for his measured and well-researched contribution. The e-petitions process is an invaluable addition to our democracy, as it ensures that we can directly respond to the interests of the British public. That can only be a good thing. The petition that sparked this debate was signed by 125,000 people in just four days. It is clear that there is a degree of public interest in the legal status of cannabis, and it is right that we carefully consider the issue. The debate’s quality has allowed us to do precisely that, although this is clearly not the end of the debate.
Since the late 1990s, cannabis use in Britain has significantly reduced, particularly among the young. According to Home Office statistics, nearly 30% of 16 to 24-year-olds had used cannabis in 1998. In 2014-15, it was a little over 16%, although the percentage had slightly increased over the previous two years from 13%. We are still on a positive trend, although it would be invaluable to understand what has driven the increase in the past two years. I wonder whether that is related to the cuts we have seen to youth services. It is also important to note that there has been an increase in synthetic cannabinoids.
As has been discussed, Portugal and other countries have chosen to decriminalise cannabis and other drugs. I know some would like to see us go down the same route in Britain. When considering lessons from Portugal, we should be clear that its drug policy is far from permissive. It removes criminal penalties for simple possession of small amounts, rather than having the wholesale decriminalisation of possession, supply and production offences. Those caught with drugs are summoned before a tribunal or dissuasion commission, which includes a psychiatrist and a social worker, who often mandate rehabilitation services or issue financial penalties. There is still a concerted effort by law enforcement, working in conjunction with the health service, to reduce drug use and in particular to control production and supply.
I am aware that Björn Hibell’s study of European drug trends shows that cannabis use is reducing among the Portuguese young. However, we must recognise that cannabis use is decreasing even faster among British youths, although from a higher base, and that there has been an increase in the use of cannabis and other decriminalised drugs among older groups in Portugal.
I understand that one reason why many may have signed the petition is that too many people, young and old, feel that they have had their lives blighted by a conviction for the possession of cannabis. A conviction may well prevent someone from getting a job while it is still on their record, and some professions—in law, accountancy and medicine—even require the disclosure of spent convictions. Our police have discretion over how to enforce the law against possession. In some areas, such as Durham, that means a force-wide policy of not charging people for possession, or even for growing their own plants. In other areas, individual police officers are allowed to make their own judgment, which includes charging people with a first offence and the possibility of a custodial sentence. We have de facto decriminalisation in some parts of the country and enforcement in others. This is an extraordinary postcode lottery. Given that a drug conviction has such a serious impact on a person’s life, this postcode lottery is simply unacceptable.
We should also recognise racial disparities. Black people, on average, use drugs less than white people, but are six times more likely to be stopped and searched for drugs. This inequity needs to stop, so I say gently to the Minister that what we lack at the moment is Government direction and leadership. If the debate does nothing more, I hope that it will flag up to the Minister that he might have some work to do to ensure the equity of law across the country and for all citizens.
My hon. Friend the Member for Newport West has consistently campaigned for the use of cannabis to be legalised for medicinal purposes, and he has made that case again today with characteristic eloquence and sincerity. I have enormous sympathy for anyone who seeks the most effective way to access pain relief. I do not doubt the reports made by those with multiple sclerosis and other illnesses that drugs can bring pain relief and improve muscle control. However, I do not believe that we need to legalise cannabis to have access to its medical benefits.
THC, the active ingredient in cannabis, is used as an ingredient in the drug Sativex, which we heard about earlier. It is already licensed in the UK—in Wales—to relieve the symptoms of MS and other medical conditions. We can and do benefit from THC without legalising forms of cannabis that are used recreationally. I understand that this is something that the Government’s drug advisers, the Advisory Council on the Misuse of Drugs, support.
I am also aware that Sativex is not available on the NHS in England owing to the cost of the drug. Although that is ultimately a decision for NICE—I accept that—I ask that Ministers look at this again. Sativex is, after all, available on prescription in Wales, as I have said, and MS sufferers in England should not face greater pain and difficulty simply because they live on the wrong side of a border. Despite the medical benefits of THC, which can be accessed through Sativex, there remains real public concern about the negative impact that recreational cannabis has on health. I share many of those concerns. My main worry about the drug is its impact on mental health, as eloquently outlined by the hon. Member for Central Suffolk and North Ipswich (Dr Poulter). We know that regular users are more likely to develop psychotic illnesses, including schizophrenia. There is also a link between cannabis use and developing depression or anxiety, particularly among those who started smoking cannabis as adolescents.
Britain has some of the highest rates of mental illness in the world. The Mental Health Foundation and Mind tell us that one in four Britons suffers from a mental health problem over the course of each year. According to the Office for National Statistics, 15% of us will seriously contemplate suicide at some point in our lifetime. Given these mental health concerns, I think it would be irresponsible to support measures that may make the drug more readily available—something likely to occur if we legalise the drug.
As I understand it, Holland abandoned its model of completely ignoring personal possession due to the impact of the drug on mental health conditions. This is worrisome, especially given the potency of cannabis on our streets. According to the Home Office’s most recent potency study, intensively grown cannabis, which is the most common form of the drug in the UK, has on average a 15% THC concentration. Traditional cannabis, if there is such a thing, has just 9%. Strong strands of cannabis have all the more impact on minds. We also have the growing problem of synthetic cannabinoids.
In conclusion, I ask appropriate Ministers to look again at Sativex and the use of cannabis for those with particular physical conditions that can be alleviated by the drug. I believe the Minister should look at the postcode lottery of criminalisation due to cannabis possession and use, but I am not persuaded of the case for the legalisation of cannabis. In this place, we should always have mind to the impact of our actions on public health. Legalisation will not improve this. Legalisation has the potential to exacerbate the problems that we have with drug dependency and mental illness.
Mrs Cheryl Gillan (in the Chair)
Before I call the Minister, it may be helpful to tell you that I intend to call Mr Flynn, the proposer, at the end. He has indicated that he would like to speak.