Psychoactive Substances Bill [ Lords ] (First sitting)
Owen Thompson Excerpts(9 years ago)
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Owen Thompson (Midlothian) (SNP)
I, too, appreciate the opportunity to participate in the Committee. This is my first time, so please bear with me. My party has also tabled amendments, and I look forward to discussing them. I welcome, as do others, the fact that there is broad agreement on many aspects of the Bill. We all want to point in the same direction but the issue is how we get there.
I echo much of what the shadow Minister said, in absolutely recognising both the need for action to be taken on prison estates and the challenges that involves, but I am not yet entirely convinced that the measures will achieve the outcomes we want. My party certainly does not oppose the amendments at this stage, but we wish to see further consideration on Report.
In many ways, the issues regarding prison estates are slightly different from the wider issues covered by the Bill. There is an absolute need for a greater education programme, to ensure an awareness of the effects of NPS. In its evidence, the Trading Standards Institute made a point about testing. How can systems be put in place to ensure that substances that enter prisons can be identified as psychoactive and then isolated and taken out of the equation? I again echo the shadow Minister in saying that in the prison estate the need for treatment is even greater than elsewhere. For those who find themselves in a secure estate as a result of an offence caused by NPS addiction, treatment is critical because removing the addiction is the only way to start to take the substances out of the equation—to remove them as today’s currency of choice.
I will be brief at this point, but I again state that we want to see a far greater focus on education and treatment while recognising the need to take action that focuses on prisons in particular.
Mike Penning
I fully understand many of the points raised by the shadow Minister and other colleagues. The measures are not a silver bullet; I think we all accept that. Action needs to be taken in the context of better treatment programmes. We are starting to understand that. Addiction to NPS is a particularly difficult matter. The action taken categorically has to be about education, and in the prison estate it also has to be about detection.
The blanket ban helps. We spoke earlier about Spice and Black Mamba. Those are generic terms for a substance that is tweaked by chemists every time we chase the matter. We are here now because we have not been able to get on the front foot, in front of the people who are trying to destroy others’ lives and, frankly, make a small fortune as well.
My hon. Friend the Member for Winchester, and the shadow Minister, rightly pointed out that there are already sanctions, but they are fairly limited within prisons, to be honest. We need to listen to the experts, to the people who deal with secure estates on a day-to-day basis. If they say that the substances are a major issue not only in that they are a currency in the estates but because of the safety of staff, visitors and prisoners, we need to act. We have tabled the amendment and are making an exemption regarding possession within prisons because that is what we have been asked to do. My Prisons Minister has told me that it is what is being asked for. My hon. Friend the Member for Winchester has spoken to some prison governors and I have spoken to others. They have asked for the measure. Is it the only answer? No. NHS England in our part of the world, NHS Scotland and NHS Wales need to step up to the plate and do some more work, because they run the treatment programmes within the prisons.
The director general of NOMs is specifically chairing across groups to make sure that we get a better understanding and better education for staff and visitors. The best option here is not actually to convict anybody but to convince people that they should change their behaviour; but we live in the real world and I acknowledge that that is not going to happen. Nevertheless, we have to send a message. That message was sent to me as the Minister from the people on the frontline that they needed this, and it is my job to make sure that they have it, so I hope that we will approve it.
Amendment 1 agreed to.
Andrew Gwynne
Absolutely, Mr Howarth. I was only stating our agreement. The clause constitutes the overview of the structure of the Bill and creates a blanket ban on the production, distribution, sale and supply of psychoactive substances in the United Kingdom. That is why discussion of the blanket ban was relevant to the stand part debate.
We have to place it on the record, however, that we recognise the need to control the production and supply of such substances, and the need to educate young people about the real nature of the drugs, as my hon. Friend the Member for West Ham said. The Minister was right that drugs such as Black Mamba and Spice are already banned, but they can be tweaked and we need to be on the front foot. We also need to look at the health of prisoners, which is why I am pleased that the Minister has tabled the Government amendments. I am pleased that the issue of research has been clarified, because that situation needed fundamental improvement in the Bill. I am satisfied that the Minister has committed to further improvements on Report, if necessary. We will hold him to that. With that, we fully support the Government’s aims and intentions to ban legal highs.
Question put and agreed to.
Clause 1, as amended, accordingly ordered to stand part of the Bill.
Clause 2
Meaning of “psychoactive substance” etc
Owen Thompson
I beg to move amendment 51, in clause 2, page 1, line 14, leave out subsection (1) and insert—
(a) 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
(b) is not an exempted substance (see section 3)”
This new definition includes part of the alternative definition of psychoactive substances proposed by ACMD which clearly merits debate and clear reasons why it should be rejected - if it is to be rejected. This would also incorporate reference to harm.
The Chair
With this it will be convenient to discuss the following:
Amendment 43, in clause 2, page 1, line 15, leave out paragraph (a) insert—
“(a) is 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, and”
Together with amendment 44 this would replace the definition of psychoactive substance within the Bill by the definition recommended by the Advisory Council for the Misuse of Drugs.
Amendment 44, in clause 2, page 1, line 18, leave out subsection (2) and insert—
‘(2) For the purpose of this Act
“substance” means any compound, irrespective of chemical state, produced by synthesis, or metabolites of those compounds.
“synthesis” means the process of producing a compound by human instigation of at least one chemical reaction.
“compound” means any chemical species that is formed when two or more atoms join together chemically.’
Together with amendment 43 this would replace the definition of psychoactive substance within the Bill by the definition recommended by the Advisory Council for the Misuse of Drugs.
Owen Thompson
We felt that there was a weakness in the Bill around the definition of a psychoactive substance. This is a fundamental aspect of how we move the proposals forward. As the Minister has mentioned, often when substances are brought on to the market, efforts are taken to make them illegal. The chemists go back to the drawing board, try to tweak the formula and the same thing comes out with the same effect but with a different formula, so it is not covered. We need to make sure that the definition is as strong as possible, so that action can be taken where required.
Our amendment moves forward some of the issues on definition that the Advisory Council on the Misuse of Drugs raised at the Home Affairs Committee. We accept that the Opposition Front Bench also has amendments on similar lines which do likewise. However, questions remain on how action can be taken because, even with a stronger definition, how can prosecutors prove that something is capable of having a psychoactive effect? This point was commented on in relation to prisoner status. How are tests done? What are the tests, and who carries them out? Would expert evidence be required in every instance where a substance is being looked at? Would that be considered under the definition and who would carry out that function?
I will be brief, because I simply want to make sure that we can have as strong a position as possible around a definition. I am not seeking to press the amendment to a vote, but to raise the matter with Ministers to make sure that on Report, these comments can be taken into account to make sure that the definition is as strong as it can be.
Mike Penning
Like all things in this House, events are often superseded. I looked carefully at the ACMD’s evidence to the Home Affairs Committee and colleagues now have copies of letters from that very expert panel as to whether it is now confident that we can define “psychoactive”. We will use its expertise as we go forward.
Earlier, we touched on why we had not consulted more with the ACMD when we formulated the Bill. Several colleagues at Second Reading and, I think, the shadow Minister earlier raised that point. Incidentally, the chairman of the ACMD and two members of the Committee were on the expert panel considering the sphere of issues that we needed to bring forward, so we did consult them. Obviously, with the chairman of the ACMD physically present, there was a huge input from the council. The ACMD is working with us. Its letter clearly states that it thinks we can define “psychoactive”. That is very important.
My concern around amendment 44 is the move to “synthesis”. Initially, the ACMD was in that position, but it has moved away from it. We are absolutely adamant that a definition cannot be arrived at through “synthetic”; it has to be a blanket ban. I think everybody is agreed on that. The Irish situation was exactly the same. We have learned from what happened in Ireland. Other countries are now following us. If we were to limit the Bill in the way that the amendments indicate, it would be quite difficult. I will wait to hear the shadow Minister’s comments.
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
The shadow Health Minister makes an important point. I chair a newly formed inter-ministerial group that includes Ministers from the Departments he alluded to and others, such as the Department for Business, Innovation and Skills, as well as Ministers from the devolved Administrations. We are treating this issue not just in England and Wales but in Scotland and Northern Ireland too. He is absolutely right that Public Health England has responsibility for part of this. Most of public health has been devolved, with £830 million going to local government. Obviously, local government has priorities. However, with 30% of its budget being spent on tackling drug and alcohol misuse, it is pretty obvious what those priorities should be. As chair of the inter-ministerial group, I will be pushing on that.
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.
Owen Thompson
I will be brief. In broad terms, the inclusion of the ACMD in the amendment would perhaps allow an opportunity for greater consideration to be given, not only to the chemical compound, but to the effect that a substance might have on an individual. I would certainly be broadly supportive of that and see merit in its inclusion, or at least we could see what could be brought forward through developing this as we progress to Report.
Psychoactive Substances Bill [ Lords ] (Second sitting)
Owen Thompson Excerpts(9 years ago)
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Mike Penning
The Home Secretary’s powers within the Bill, should it become an Act, will enable us to ensure that sort of thing happens. I assure the hon. Gentleman that a close eye will be kept on all types of medicine. If what he mentioned was felt to be happening between now and Report, which I doubt, or as we go forward, there are powers within the Bill to make sure that those medicines are covered. I hope that alleviates his concerns.
Amendment 3 agreed to.
Amendment made: 4, page 38, in schedule 1, line 13, leave out paragraphs 3 to 5—(Mike Penning.)
This amendment is consequential on amendment 3. It removes the entries in paragraphs 3 to 5 of Schedule 1 in respect of investigational medicinal products, homoeopathic medicinal products and traditional herbal medicinal products, as these products fall within the revised definition of medicinal product inserted by that amendment.
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.
Mike Penning
The knowledge about poppers being part of the debate has been out there in the ether; it was actually partly discussed in Scotland, when the Scots carried out their review. It was certainly discussed when the Irish passed their legislation. It has been known, clearly, all the way through.
What I am saying, however, is that in what I am trying to do—I accept that this is a concern for individuals—this issue could be really difficult for this Bill. Of course, the substances that we are banning are not all the really horrible ones, and I am really genuinely worried that I would open up an opportunity for others to ask for exemptions in areas where we do not really want to have them.
I repeat what I said privately to the hon. Member for Midlothian, namely that I hope that people will understand that this process is about my trying to get a piece of legislation on the statute book that does the job we are asking it to do and that is not challenged in the wrong way.
Owen Thompson
I hear what the Minister is saying. However, it is one thing to say that there is reassurance for individuals who may take poppers, but how do they actually get them if we do not have an exemption for poppers? If we cover poppers in the ban that we are proposing in the Bill, they will become illegal and then those who would not be criminalised by using them cannot actually get them through any legal means. [Interruption.] I hear the Minister saying regularly that there is a blanket ban, but it is a blanket ban with the exception of controlled drugs, with the exception of medical products, with the exception of alcohol, with the exception of nicotine and tobacco, with the exception of caffeine, with the exception of food—
Andrew Gwynne
I appreciate that it is not proper form to respond to a Minister’s comment through a Member who is intervening on him, but if I were to do so I would point out that the Minister said from a sedentary position that that is not the experience in Ireland. Does the hon. Gentleman suspect that what might actually be happening in the Republic of Ireland is that people are going to Northern Ireland to purchase poppers legally, which they can then use themselves in the Republic of Ireland, and that might be why this has not been much of an issue south of the border?
Owen Thompson
I would suggest that there are probably a number of ways in which any individual could acquire substances; indeed, that is part of what we will come on to next.
Mike Penning
Perhaps there is a sensible way forward, not least because the Select Committee report is fairly recent and many colleagues in the House have not had an opportunity to read it. Of course, if we do not vote on this measure now, it can then be brought back for the House, rather than this Committee, to decide. I have concerns as a Minister, not in a personal capacity. However, perhaps it would be sensible if we took some time and took some stock to consider the other evidence, and then the House can decide on Report.
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
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.
Mike Penning
I fully understand what colleagues on both sides of the Committee are saying, but I have some real concerns. If we exempt a group—not because they are young; we keep saying that, but we are just old and they are all younger than us—we will open up a significant loophole in the Bill, not least because of what my hon. Friend the Member for Enfield, Southgate spoke about from personal knowledge. What is personal use? We have discussed that in lots of other areas. While I desperately do not want to criminalise young people, there is a whole set of measures in the Bill that will prevent us from getting to that position. That is why they are there.
I advise the Committee that some things that have been said are not quite factually correct. Supply does not need proof of payment under the 1971 Act, but proof of payment is a consideration in sentencing, which is exactly what we would look for in this measure. It is not for me to tell the Sentencing Council exactly what its guidelines should be. We have moved away from politicians doing that—it is now people who are much more expert than I am—but I have already committed to writing to the Sentencing Council once the Bill has completed its passage in order to advise it on the will of the House. We will return to that when we discuss children’s homes.
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.
Mr Burrowes
I wish to speak to the group of amendments, in particular amendment 55, which provides the opportunity to talk about how the courts would deal with the issue when it comes to sentencing. I accept that the Bill will hopefully help to revolutionise enforcement and provide tools for the police to get out there and deal appropriately and proportionally with getting psychoactive substances off the streets and out of harm’s way for hardworking citizens—all citizens, in fact. That is welcome. The Bill also recognises the civil sanctions and the civil regime regarding the seizure of such items.
When a prosecution comes before the courts—in Ireland there have not been many prosecutions and there may not be a huge number here—we want to ensure that the penalties are just and commensurate with the offence. We therefore have a problem, because the substances are different from controlled drugs, and the Misuse of Drugs Act 1971 contains a classification system that enables relative harm to be attached to a controlled drug, and that is then relevant to the sentence. Because of the blanket ban we do not have that, but I do not want to rehearse our previous debates on the matter.
It is important, nevertheless, not least for the courts because of proportionality, to be able to distinguish between psychoactive substances. No doubt the courts will take account of statutory and non-statutory aggravating factors—we will debate those factors later—and will consider the amount of drugs, the circumstances and the degree of sophistication, but they will also need to reach a judgment on the relative harm of the substance. I draw the Committee’s attention to page 13 of the Home Affairs Committee report, a report I know the Minister read avidly over the weekend—he could not put it down.
Chapter 5, on the concept of harm, draws reference to the evidence of Rudi Fortson, QC, who highlights the position, which the Minister reiterated to the Committee, that the Government do not wish to be disproportionate with sentencing—far be it from them to want to be disproportionate; they certainly do not. There is also wider consideration in case law, principles and conventions that would ensure that every penalty would be considered proportionally.
How, therefore, will the sentencing courts get that assistance? Rudi Fortson states that,
“in the absence of drug classification, or an expert’s opinion (if accepted) as to harm, the courts will have little option but to assume that all psychoactive substances are equally harmful”.
That is the problem we have, and it is why the debate on amendment 55 is welcome.
The Minster has already said that as soon as the Bill has completed its stages he will write to the Sentencing Council encouraging it to take action. The problem with that is that I know from experience that the council is not the quickest vehicle where taking action is concerned. On the desecration of war memorials, there was a commitment from a Justice Minister to write to the Sentencing Council, but it could be considered only when the council was to meet to consider amending its guidelines. I therefore encourage the Minister to make it clear that the process will be expedited.
The Minister and the Government have rightly taken an expedited view in relation to getting on the statute book the legislation regarding the enforcement tools, but we also need it to be fit for purpose for the courts. That is why I would like the Minster to communicate with the Sentencing Council and seek assurance that it will consider the matter in an expedited form so that we will get an answer quickly.
I also take comfort from the recent letter from the Advisory Council on the Misuse of Drugs to the Home Secretary, which now provides a clear scientific framework to establish that this issue can be proved in the lab in vitro. That will also provide an opportunity, with the benefit of evidence that I think is going to be resourced, whether that is from the forensic strategy or the Centre for Applied Science and Technology. That material will all come together to provide the body of evidence for the Sentencing Council to come to an informed judgment. However, that will all need to happen at quite a rapid pace. That is my first point.
The second point is that there will need to be some flexibility, because there are new psychoactive substances coming on stream. How quickly will the Sentencing Council be able to provide appropriate guidance to the sentencing courts for these new substances? I would have thought that there will be a whole new regime for the Sentencing Council to deal with this, given the way that it has taken its time before.
It is absolutely vital for public confidence and the interests of justice that this particular chapter in the Committee’s deliberations is taken to heart. We made a recommendation here that the Sentencing Council be requested to produce appropriate sentencing guidelines, taking account of relative harms. That was a specific recommendation; I think the Minister is intimating that he is on the same page on that one. It is very important that we have something that is fit for purpose, not just for the police but for the courts.
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.
Carolyn Harris
I have been greatly troubled by some of the stories I have heard in my constituency of Swansea East from the local police, social workers and organisations. Young women are now grooming other young women, with the fee being legal highs. Some of the stories are absolutely horrendous. The Children’s Society has done great work on that. For 63% of the housing providers who engaged in one of its surveys, the greatest problem they saw for these young people was involvement in legal highs.
Owen Thompson
That is very much the case. In many situations, the young people we are seeking to help and support are at a vulnerable stage of their development. There is a reason we need to give them extra help. It is about ensuring that a situation that has resulted in their being in secure or looked-after accommodation is not made worse by not putting in place extra protection to ensure we help, support and encourage their development towards the better future that I am sure we want for all young people.
Owen Thompson
I will continue in the spirit of harmony and good will that has been a theme this afternoon. Our amendment 53 was identical to amendment 50, so great minds think alike.
The same reasoning lies behind amendments 50 and 54. Amendment 50 would ensure protection for people importing substances ordered online. Exporting is a slightly different situation, but the logic follows through. The spirit of the Bill is about ensuring that individual users are not criminalised; it is about addressing the wider industry and wholesale suppliers and dealers. Society is changing—in the way in which people approach everyday shopping, for example—so we have to take account of the fact that people approach things differently. It is not simply a case of going down the street to a head shop, or whatever it happens to be, to buy a substance. With every other aspect of life increasingly moving online, we must ensure that legislation keeps pace. These amendments would ensure that there is an eye towards that.
We will seek assurances from the Minister if he does not accept the amendment. This is a probing amendment, and we are trying to ensure that these elements are fully thrashed out before Report. As more and more happens online, we need to ensure that our legislation is keeping pace and taking account of changing trends in how people access substances such as NPS.
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.
Psychoactive Substances Bill [Lords]
Owen Thompson Excerpts(9 years, 1 month ago)
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Owen Thompson (Midlothian) (SNP)
I welcome the opportunity to speak in the debate. I join my hon. Friend the Member for Glasgow North East (Anne McLaughlin) in supporting the Bill, but I also have reservations and concerns, which I will cover in my remarks.
In Midlothian, as in constituencies throughout the country, we have seen the tragedy that legal highs can bring. Only this year a young man in Gorebridge died after injecting a new psychoactive substance, and it was not quick—it took him seven weeks to die. Despite several operations and a huge effort from medical staff, he eventually died from septicaemia, so death is not always immediate. Despite such tragic and unnecessary deaths, however, there is still a legal high retailer right in the centre of the county town of Dalkeith in Midlothian, so the risk of more unnecessary deaths continues. I praise those in my constituency who have long campaigned against this retailer and the dangers such substances present. The campaign is supported by the local press, through The Midlothian Advertiser, local MSPs Christine Graham and Colin Beattie, Midlothian Council, particularly Councillor Margot Russell, and the safer communities board, which has worked with partners to address the dangers presented by NPSs in every possible way.
Although I welcome the Bill and have no doubt that it is necessary, we can and must do much more to address the issue as a whole. Organisations have raised their concern that illegal dealing networks might be boosted by the closure of so-called head shops, so the Bill as it stands might not achieve its aims and could even have serious unintended consequences. I therefore agree that we need to thrash out the detail in Committee.
It is not often that I agree with the House of Lords, but I noted with interest a few of the points made in the debates there, especially regarding the notion that while the aims of the Bill are clear, the underpinning legislation— the Misuse of Drugs Act 1971—probably needs to be reviewed. If we do not take that chance now, it will be a missed opportunity. The hon. Member for Central Suffolk and North Ipswich (Dr Poulter) said something similar. Although I am disappointed that that proposal did not receive the support in the Lords that it warranted, I am grateful that it received such attention. Perhaps that could be considered during the Bill’s passage.
We certainly should do what we can do now, but if the Bill passes, it should come into action alongside a robust and solid plan that focuses on educating our youngsters not just about NPSs, but about all drugs—legal or otherwise, To achieve the necessary level of awareness, we will need far-reaching drugs education as much as the Bill.
Research by the Angelus Foundation, which I believe is the only dedicated charity looking at and combating legal highs, was established by a mum, Maryon Stewart, who lost her 21-year-old daughter to a NPS in 2009. It identified that
“currently only 15% of schools teach drugs and alcohol education for one hour or more per term”.
We need to look at the problem in much more detail, and I very much encourage more emphasis on education. While this Bill represents some progress, it is not enough. We must do more to inform teenagers in all our communities about legal highs and other drugs. We also need to get effective preventive messages to young people through all kinds of social media. Let us address young people through the ways they access information.
I want to make clear the challenges surrounding the identification and exclusion of substances. It is right that the approach should be robust and preventive, but we must consider the impacts for medical and scientific research and give careful consideration in our approach to which substances should be banned. This, of course, must be balanced with the need to keep up to date with the ever-changing chemical compounds of the substances, as other Members have mentioned. The other huge challenge is the time gap between a new drug becoming available and an opportunity for the Government to react against it. We must ensure that sufficient resources are in place to deal with these challenges, so I ask the Government to outline clearer details about that as the Bill goes through its next stages.