Psychoactive Substances Bill [Lords]

Mike Penning Excerpts

Wednesday 20th January 2016 Commons Chamber

I have noted the Home Secretary’s response to the report of the Home Affairs Committee in which she recognises the representations made about a beneficial and health relationship effect and the concern that a ban will have, especially on men who have sex with men. I was pleased to see that the Home Secretary has chosen to refer the issue for further consideration by expert bodies. However, I was a little perplexed as to why that consideration is being made in partnership not with the Advisory Council on the Misuse of Drugs—her own body of scientific experts on drugs—but with the Medicines and Healthcare products Regulatory Agency. Strangely, if the recommendation from the MHRA is favourable and agrees with the evidence about poppers to date, the ACMD will then be consulted. Why does the Home Secretary prefer a different set of scientists and clinicians from her own? Perhaps the Minister could provide some clarity on that.

[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.

[Lyn Brown]

I am pleased to hear that, and I am grateful to the Minister for his intervention.

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[Mr Burrowes]

I want to make some progress.

Let me focus on education, because it is important to ensure that there is enough communication to deal with this issue and to have a profound effect, not just through legislation and enforcement, but through education. We must make the most of the opportunity to educate everyone out there about the harms caused by NPSs.

I have been involved in drugs policy for some time, and I had the pleasure and privilege for a number of years of sitting as an honorary member on the inter-ministerial group on drugs. To me it is not surprising—I say this frankly and openly—that no representative from the Department for Education is currently sitting on the Treasury Bench. Although that IMG was well attended—it is one of the best attended cross-departmental groups, and it led to the 2010 drugs strategy in which I played my part—the Department for Education was the most difficult Department to get to the table.

I say that openly and publicly because it is relevant when assisting the Minister to ensure that communication gets out there, and that education is prioritised. I do not believe that the Department for Education has yet been as forthcoming as it should be, not least given the commitment understood by the Committee, which was that meetings between the Home Office and the DFE would run parallel to parliamentary business, so that we could see that the DFE is serious about wanting to educate young people about the harms of NPSs.

My concern is great—I say this in relation to new clause 1. I do not suggest that we need such a prescribed PSHE route, but we urge the Government to include education in the review and to say that 30 months down the line they will look at how well we have done on education, and how well the word has been spread about the harm of NPSs. The Government told the Home Affairs Committee that the strategic communication plan has been set out, but a question tabled by the hon. Member for West Ham (Lyn Brown) revealed that no specific funds have been set aside for its implementation.

[Mike Penning]

In case I forget this point in my later comments, perhaps this is an opportune moment to say from the Dispatch Box that that issue will be part of the review into how well we have done in educating young people. I will respond in a moment to the hon. Member for West Ham (Lyn Brown) about the financial point. Perhaps I will not be—I nearly said “doing drugs”, but that is probably a bad thing to say in the Chamber. I may not have this responsibility in the near future, so it is good that I put on the record, categorically, that that issue will be part of the review.

[Mr Burrowes]

That speaks directly to amendment 4, which was also tabled in Committee. That is in effect what the Minister has committed to and that is very welcome.

I have seen my way, when I was on the inter-ministerial group, through four Home Office Ministers. I recognise my right hon. Friend the Minister’s commitment to tackling drugs and, although there has been a revolving door of individual Ministers involved in tackling drugs, Department for Education Ministers need to show that same commitment.

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[Owen Thompson (Midlothian) (SNP)]

I, too, will be brief.

First, I wish to thank the other members of the Bill Committee. This was my first Bill Committee experience. It was clear that the Minister, shadow Minister and all the other members of the Committee were pointing in one direction and that although we might have slight disagreements about the measures to take along the way, we ultimately want to get to the same point.

I echo the comments made by my hon. Friend the Member for Glasgow North East (Anne McLaughlin) in support of her amendments. I also very much wish to echo the comments made by a number of colleagues in Committee; I raised the point about poppers there and the case was again made, “We want a blanket ban. How can we possibly have exemptions?” We already have a schedule of exemptions in the Bill, so there is a precedent. Giving an exemption now and having the study to continue the work being done, rather than banning poppers and having to undo that and unpick a mess that we might create for ourselves, is a far more sensible approach to take. I hope that the number of voices from around this Chamber today to that end will be heard by the Minister and he will tell us that he has now come to that conclusion and that that is the position we are going to take. I am aware of the pressures and the keenness to get on to the second group of amendments, so, with that, I shall conclude.

[Mike Penning]

It has been said several times that perhaps this Bill should have been introduced a lot earlier—many years ago. One reason why it was not is that it was so difficult to do. I say to my Liberal Democrat friend, the right hon. Member for North Norfolk (Norman Lamb), that when Lynne Featherstone was in my job she was 100% in support of this Bill. I know it has been a difficult time for the Liberal Democrats, but perhaps she was right in many of the things she said and which we brought forward. I am not going to comment any further on that, because the right hon. Gentleman and I disagree profoundly. We will, of course, oppose his amendments; he is not going to be surprised by that.

I, too, want to get on to the second group, so it is important that we make some progress. Many important speeches have been made this afternoon, in completely the right tone and adopting completely the right attitude towards what we are trying to do, which is protect people. Throughout the Committee stage, I was trying to ensure that we kept why we are trying to do this at the forefront of things. We may disagree about specific parts, as we have heard in the Chamber today, and we may slightly disagree on the methodology on certain parts, but I have a responsibility as the Minister, standing at this Dispatch Box with my colleagues from other Departments. They have worked closely with me, and I want some of them to work even more closely with me as we go forward with the Bill and with the review which we have committed to all the way through.

With that in mind, I will try to deal with new clause 1, then take up some of the issues raised in connection with other amendments and then deal with amendment 5, which relates to poppers. That has taken up most of our time in the Chamber today and, as was alluded to by the Chairman of the Select Committee, it is probably one of the areas where we slightly disagree—and then it is only on how we do it, rather than what we are going to do.

As I said early on, this Bill is not a golden bullet; it is not the be-all and end-all. It is about providing a blanket ban; it is a brand new type of legislation. We have not seen it before in this House, and it needs to be worked through with two or three other Departments. Obviously, the Ministry of Justice must be involved because we are creating a criminal offence—fortunately, I also sit in that Department, which is quite helpful. The Department for Health is also important. During the course of the debate, I was very conscious of the implications for public health. I am also talking about the prevention of diseases, but I will come back to that later. Lastly, as new clause 1 indicates, the involvement of the Department for Education is also important.

I met Ministers, scientists and police in the Republic of Ireland to find out how their Bill, which is close but not identical to ours, worked. One of the biggest things they said was that we need to get the message out there. We should target young people, but not exclusively young people, as we discovered today; I mean no disrespect to my hon. Friend the Member for Reigate (Crispin Blunt) when I say that. The matter runs across the age profile. I do apologise if I refer to young people too often.

[Gerald Jones (Merthyr Tydfil and Rhymney) (Lab)]

rose—

[Mike Penning]

I will give way, but I will not do it too much, because we want to get on to the next group of amendments.

[Gerald Jones]

What lessons does the Minister think we can learn from the Welsh schools liaison programme, which sees drug education awareness being delivered in 97% of primary and secondary schools in Wales?

[Mike Penning]

With devolution, different Governments in different parts of this great nation are delivering programmes. I fully respect that it is very early days. Part of the review that I committed to early on is that we will look very carefully at how we and other parts of the country have done things. Interestingly, we will have better evidence from the Republic of Ireland as well.

When we discussed this matter in Committee, I was aware that the shadow Minister was at times on a very steep learning curve, as indeed was I with regard to part of the Bill. I do think that we can resolve some issues without the statutory requirement in the legislation. The shadow Minister referred to the cost of interventions and education. The latest figure that we have on tackling drug misuse is £341 million, which was, believe it or not, in 2011-12.

Right at the start, I accepted that FRANK is not perfect and that it needs to be improved, but I do not want scrap it and bring in something else with a different name. The scheme very much needs to work with the Angelus Foundation and others, because the third sector—the voluntary sector—often knows much better than the Government, which is why the previous Administration and this Administration have used it extensively.

[Norman Lamb]

rose—

[Mike Penning]

Let me make some progress. If I have time, I will come back to the right hon. Gentleman.

I know from the speech of my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) that there were concerns that non-psychoactive substances will be pulled in. This Bill is specifically about psychoactive substances. My full understanding is that we will not be including the sort of products to which she has alluded, but we will keep a close eye. Under clause 3, we have the ability to take things out. I must say, though, that that clause is not designed to bring in things, which caused slight confusion during the debate this afternoon. When I come on to poppers, I will explain myself a little better.

[Mrs Gillan]

Will the Minister give way?

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[Mike Penning]

No, I want to make some progress if I can, but I will come back if I have some time.

Last night, I had the honour of meeting my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter), along with a professor from King’s, to discuss research. We need research not only in matters of health, but in the law to ensure that we are evidence based. I was conscious last night that we needed to ensure that we are not preventing research. The Bill actually makes a provision for it, but the probing amendments of my hon. Friend were looking at the problems around cannabis and how we need to learn about its harms and benefits. I will ask my officials to continue that important dialogue after we leave the Chamber this afternoon.

I had a really interesting time in Committee with the Scottish National party’s Front-Bench spokesperson, the hon. Member for Glasgow North East (Anne McLaughlin). We have had a very good dialogue with Scottish Ministers, particularly on an important provision that makes possession a criminal offence in secure facilities. That was not originally in the Bill, but it was added at the request of the Ministry of Justice and, interestingly, prison officers and some prison groups, because these substances are a menace in our prisons and young offenders institutions. I am quite amazed at some of the hon. Lady’s amendments today, because during our discussions both the Minister and the Cabinet Secretary in the Scottish Government were content for possession in custodial suites to be an offence. I make no comment on communications within the Scottish Administration, but we worked really hard to ensure that everybody was on board with that, so I cannot support those amendments.

The key to the Bill is protecting people. I do not want to criminalise every young person in the country who has been using these substances legally, but dangerously, for a considerable time. However, it is absolutely crucial that we do not get into a situation in which the defence in our courts is, “I bought it for a couple of friends and sold it on to them, so what’s the danger?” It is a danger.

[Mrs Gillan]

In that case, will the Minister ensure that he writes to me about the substances listed in my amendment so that I can reassure my constituents that they will not be breaking the law by continuing to offer them online?

[Mike Penning]

I am more than happy to write to my right hon. Friend with those assurances, so long as we know exactly what those substances are. We need to communicate about that outside the Chamber.

[Norman Lamb]

rose—

[Mike Penning]

I will give way to the right hon. Gentleman, but then I will curtail my comments so that the House can make its decisions and we can move on to the next group of amendments.

[Norman Lamb]

I am grateful to the Minister. On the question of not wanting to criminalise young people, and in reference to the point made by the hon. Member for Glasgow North East (Anne McLaughlin), is it the case that the Bill will criminalise someone who buys online from overseas but will not criminalise someone who buys in an alleyway from a criminal?

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[Mike Penning]

We need to stop these products from being available to young people, middle-aged people and old people like me. It is absolutely crucial that we do that. One of the ways that people can get these products, as we have heard today, is online. We need to ensure that the criminal offence of selling one of these substances will have the penalties it deserves, because there is no point having a blanket ban if we do not actually enforce it.

[Paul Flynn]

rose—

[Mike Penning]

I will not give way again.

Let me now touch on what is an important, and understandably emotive, provision in the Bill. This relates to amendment 5, tabled by the hon. Member for West Ham (Lyn Brown). I desperately have no intention of making life difficult for any individual group; my sole role as a Minister at this Dispatch Box is to protect. When I first looked at the proposals in the Bill, one of the things I asked straight away was, “Okay, tell me about poppers and alkyl nitrites”—I knew very little about them.

Bearing in mind that my role is to protect people and to make sure that this legislation does its job, one of the first things that was put in front of me is the fact that since 1993 these nitrates have been mentioned 20 times on death certificates. Then after that—quite late on, to be fair—I started to listen to other groups, because it was the first time they had asked me to do so. The Bill had gone through the Lords and started its Committee stage when, in Committee, I offered to meet, as I always do, any group that wanted to come and see me. Groups that were going to be affected by the poppers ban came to see me and started to give evidence that these substances were not as dangerous as I had said—and have probably just said again.

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[John Woodcock (Barrow and Furness) (Lab/Co-op)]

I apologise for any confusion, Mr Deputy Speaker. I thought that this debate would come later. I will speak very briefly. I am grateful to you for allocating time for this matter.

I want to impress on the Government that they ought to consider adopting the extra protection in the new clause. The blanket ban is a good step forward for which many of us on both sides of the House have called for some time. However, the potential still exists for a significant gap between the police or a local authority seeing the substances being traded and their being granted a court order. The new clause would allow an interim ban to be put in place while the application for the court order was being heard. If the application turned out to be misplaced, compensation of some kind could be made, but the provision would give communities the extra protection they need and deserve in these circumstances.

[Mike Penning]

I apologise to the House that my comments will have to be short because of the limited time available. In respect of new clause 2, I fully understand where Labour Members are coming from, but judicial oversight is very important. The hon. Member for Barrow and Furness (John Woodcock) mentioned the possibility of compensation if we got it wrong, but I do not want to get it wrong. I believe that we can get these matters into the courts very quickly; we do so with other court business and we can get judges to make these decisions.

My hon. Friend the Member for North West Hampshire (Kit Malthouse) spoke to amendments 2 and 3, and I fully understand his argument. The logic behind the specific designation of schools in the Bill goes back to the Misuse of Drugs Act 1971. I absolutely agree that we should bring our legislation up to date quickly, and I believe that the Sentencing Council is the place for that in a modern democracy. However, under section 125(1) of the Coroners and Justice Act 2009, courts are under exactly the same obligation to consider aggravating factors when sentencing an offender, whether those factors are in this Bill or in the guidelines issued by the Sentencing Council. So, sadly, although I fully understand both sets of arguments that have been put forward, I believe that we need to go with the Bill as it has been drafted.

Question put, That the clause be read a Second time.

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[Mike Penning]

I beg to move, That the Bill be now read the Third time.

This has been an experience. I fully understand why previous Ministers and Governments looked long and hard at the Bill, and why, although it was desperately needed and there was a lot of talk, it did not go very far.

I commend the work done by two Liberal Democrat Ministers in the last Administration, Norman Baker and Lynne Featherstone, who were very much in the driving seat in in the preparation of the Bill. For a number of reasons I wish that it had been introduced in the last Parliament, not least because I would not have been at the Dispatch Box having to deal with so many difficult issues.

This is an enormously important Bill. It is not perfect, but it is an awful lot better than what we had before we started. There were some minor amendments that needed to be addressed in the other House, but in 2014 there were 129 deaths in Great Britain in which psychoactive substances were implicated. On the day I announced this Bill was going to be introduced, I took a call from a journalist from Falkirk in Scotland who wanted a comment from me on why I was doing this. He told me about a gentleman and a lady in his area who had been to a head shop a couple of days before and bought what they thought were safe, legal products, and within hours he was dead and she was seriously injured. I passionately hope she has made a full recovery.

I am conscious that we should never again talk about a legal high that is safe or legal. If someone takes a substance, they have to realise the dangers involved in that. I know the shadow Minister wants us to be strong on the education part of the Bill, and we will work together to make sure that it is strong.

I also want to express thanks for the tone and the way in which we have conducted proceedings on the Bill. The Chair of the Select Committee alluded to the fact that it has been done quite speedily. There was speedy work done by the Select Committee and by the Public Bill Committee. I thank all members of the Bill Committee. Some of them, particularly the Scottish National party members, had never participated in a Bill Committee before, and I pay tribute to the attitude and the way in which that was done. I also pay tribute to the devolved Administrations, because this Bill covers the whole of the UK; it is a very important Bill.

I pay tribute in particular to my hon. Friend the Member for Finchley and Golders Green (Mike Freer). There was never any intention in this Bill of making things difficult for any individual or groups. What we wanted to do—I was passionate about this—is make us safe in this country. We wanted to get away from the concept that people might have thought something was fun and would be safe, when it could take their life or the life of their loved one.

My team, led by an excellent Bill manager, has done excellent work as well. That is perhaps partly a tribute to the work done before I was the Minister—the background information that gave us an understanding of how this Bill could work.

It is absolutely right that the Bill is similar, but not identical, to the one introduced a couple of years ago in the Republic of Ireland. We have learned from some of the mistakes made there. To be fair, they are looking very closely at us now.

It should also be said that we are not alone in having our communities blighted by these products. Other countries around the world are trying desperately to address this issue. Next week a Minister from far, far away is coming to talk to me and to ask, “How have you done this? How are we going to do it? Can you help us by monitoring it as you go forward so we can introduce similar things?”

There is one major amendment that I particularly hope works, and does so very fast and that is the Government amendment on possession within custodial premises—prisons and the other closed estate. That was requested not by me, but by the prisons Minister. He requested it because he had the governors around the country, the Prison Officers Association, and others, including the prisoners, saying, “This is out of hand in our prisons. We need help.” Many people said that there was legislation that could have been used, but this Bill makes it very clear that possession in prison or other custodial premises is a criminal offence. Nobody in this House wanted to criminalise everybody in possession, but within these institutions that is very important. I hope that that works quickly, along with the body-worn cameras which are being trialled in our prisons at the moment to prevent assaults on staff.

I am conscious that others want to speak, but let me say that I am enormously proud to have brought this Bill through, as it will save lives. As a father, I can only imagine what others have gone through when they have had their loved ones taken away from them or seen them badly damaged. I, too, panicked like hell when my daughters went to university. They are really sensible kids who understood everything, but they could easily have been dragged into thinking that these things were safe—they were not safe and we have made sure that everybody knows that now.

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[Anne McLaughlin]

I shall be very brief. I wish to congratulate all those involved in bringing forward this Bill, including the Government; the Minister who has been very willing to engage in open and robust debates; the Scottish Government who have supported the ethos behind the Bill; the Committees; and our colleagues on the Labour Benches. This is the second Bill with which I have been closely involved, and it has been a pleasure to work alongside Labour colleagues on a number of issues.

It is clear that new psychoactive substances are dangerous, and we are putting that message out there now. They are also unpredictable: there is no way of knowing what is in them or of predicting the impact on the individual. In a previous debate in this House, I talked about someone I know who made one foolish mistake at the age of 17. She was a talented young medical student, and a beautiful girl, and she has spent the rest of her life on a locked psychiatric ward. It is impossible to predict what impact drugs will have.

I have some remaining concerns, as the Minister will be aware, particularly on poppers. I look forward to the review. I remain concerned about distinguishing between people buying online and people buying down a dark alley from a drug dealer. I understand that the Minister has said that that is not the intention behind the Bill, and I accept that. I just want to quote him:

“The spirit of the Bill is that we do not want to criminalise individuals for possession”.—[Official Report, 19 October 2015; Vol. 600, c. 737.]

He also said:

“Possession in a club would not be an offence; indeed, possession is not an offence under any part of the legislation”,

and:

“Purchase and possession would be legal… so there would be no illegality on the part of the individual.”––[Official Report, Psychoactive Substances Public Bill Committee, 27 October 2015; c. 37-63.]

[Mike Penning]

In the spirit with which we have taken the Bill through, I just wanted to say that the Bill does make possession illegal in secure institutions.

[Anne McLaughlin]

I understand that—as the Minister knows, I am against it—but I was referring specifically to buying substances on the internet. We were unable to have those words included in the Bill today, but we do have the Minister’s words on the record, and lawyers will be able to use them if they have to.

My intention in all this is to protect people on two fronts: to protect their health by supporting the Bill in the first place, and to protect them from being criminalised for making a foolish mistake on one occasion. I commend the Bill as it stands, and, if it turns out that we are right about some aspects, I hope that it will be amended at a later stage.