Psychoactive Substances Bill [Lords] (Third sitting)

Debate between Owen Thompson and Lyn Brown

Thursday 29th October 2015 Public Bill Committees

[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 ] (First sitting)

Debate between Owen Thompson and Lyn Brown

Tuesday 27th October 2015 Public Bill Committees

[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.

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[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.

Psychoactive Substances Bill [ Lords ] (Second sitting)

Debate between Owen Thompson and Lyn Brown

Tuesday 27th October 2015 Public Bill Committees

[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.

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[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

[Lyn Brown]

I beg to move amendment 46, in clause 5, page 2, line 36, at end insert “for personal gain”

This would restrict the offence of supplying psychoactive substances to those who do it for personal gain, as opposed to those who supply them for other purposes.

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[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.

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[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.

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[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.