Prisons (Substance Testing) Bill

Richard Holden Excerpts

Wednesday 2nd December 2020 Public Bill Committees

[The Chair]

With this it will be convenient to discuss the following:

Amendment 1, in clause 2, page 3, line 35, at end insert—

“(7) In the Prison and Young Offender Institution (Coronavirus, etc) (Amendment)(No. 3) Rules 2020 (S.I. 2020/1077)—

(a) omit rule 2(3), and

(b) omit rule 3(3).”

S.I. 2020/1077 added a new substance to the list of “specified drugs” in the Prison and YOI Rules. That list is no longer needed because of the changes made by the Bill and so this amendment revokes the S.I.

Clause 2 stand part.

Clause 3 stand part.

[Mr Richard Holden (North West Durham) (Con)]

It is a pleasure to serve under your chairmanship, Ms Ghani, and to introduce this Bill on behalf of my right hon. Friend the Member for Chesham and Amersham (Dame Cheryl Gillan), who cannot be here today. I thank Lorraine O’Shea from my right hon. Friend’s office, who has been invaluable in bringing this private Member’s Bill together.

Clause 1 allows Her Majesty’s Prison and Probation Service to test prisoners for all psychoactive substances, including any new compounds that emerge. It also allows prisoners to be tested for any controlled drug, pharmacy medicine and prescription-only medicine. It achieves that by using the definitions for those substances and medicines already set out in legislation, including the Psychoactive Substances Act 2016 and the Human Medicines Regulations 2012.

It is a feature of psychoactive substances that new substances appear regularly, with slight alterations to the chemical mixture. When that occurs, Her Majesty’s Prison and Probation Service has not been able to test for these new compounds until they have been added to the Prison Rules 1999 and the Young Offender Institution Rules 2000. The most recent example was scopolamine, a psychoactive substance added to the rules in October.

This clause will allow the drug-testing framework to respond quickly to test for new psychoactive substances, or any prescription-only or pharmacy medicines, without first having to amend the rules. Prisons and young offender institutions will be able to better plan for treatment services, identify those who should use them and, where appropriate, impose sanctions.

Amendments may still be made to the rules through statutory instruments to allow testing for substances that are regarded as harmful and which fall outside existing statutory definitions of controlled drugs, pharmacy medicines, prescription-only medicines and psychoactive substances. These are defined as “specified substances” in clause 1. Clause 2 amends the Prison Act 1952 to ensure that a substance cannot be listed as a “specified substance” in rules if it already falls within the statutory definitions of controlled drug, pharmacy medicine, prescription only medicine or psychoactive substance.

Clause 1(4) makes provision for the anonymised prevalence testing for medicinal products as well as controlled drugs, psychoactive substances and specified substances. “Medicinal products” is a wider category of substances than “prescription only medicines” and “pharmacy medicines” and is defined by reference to regulation 2 of the Human Medicines Act 2012. Having an express statutory basis for prevalence testing will provide a useful insight into trends in drug use and support healthcare providers in planning their services and tailoring their treatment programs in prisons and young offender institutions over time.

Clause 2 also sets out consequential amendments following the changes in clause 1. Clause 2 will allow the Secretary of State to make any necessary changes to the Prison Act 1952 in the event of any future changes in the Human Medicines Regulations 2012 or other legislation relating to human medicines. For example, if a substance definition that our Bill refers to were to be revoked in future, we could amend the Prison Act 1952 to include the definition or refer to alternative legislation and avoid any impact to Her Majesty’s Prison and Probation Service’s drug testing framework.

As we have discussed, the Bill adopts a general definition of psychoactive substances. That allows HM Prison and Probation Service to test for any psychoactive substances. In the past, substances considered psychoactive have been listed in the rules as specified drugs, in order to allow for testing. That is no longer required. It is therefore necessary for the Bill to remove the existing lists added to the Prison Rules 1999 and the Young Offender Rules 2000, as per our amendment. It is better for the statute book explicitly to remove statutory instruments that would otherwise have no effect. That is why we tabled the amendment, which is a minor and technical amendment, specifically in reference to scopolamine.

Scopolamine was added to the prescribed drugs list by statutory instrument in February, so that HM Prison and Probation Service could test prisoners for a psychoactive substance that had come into recent illicit use in our prisons. Were the Bill to become part of the statute book, scopolamine would be covered by the new definition of psychoactive substances inserted into the Prison Act 1952 by clause 1 of the Bill. The SI laid in October would therefore become redundant, so the amendment removes it from the statute book.

Clause 3 confirms the short title of the Bill and makes provision for its coming into force. The clause also provides that the Bill extends to England and Wales only, as prisons are devolved in both Scotland and Northern Ireland.

[Ms Lyn Brown (West Ham) (Lab)]

It is an absolute pleasure to serve under your chairmanship, Ms Ghani. What an honour to be considering a private Member’s Bill this morning. It is a shame that the right hon. Member for Chesham and Amersham is not with us, but I know that the hon. Member for North West Durham will continue to take the Bill through the House most ably. He demonstrated his skill on Second Reading. The right hon. Member for Chesham and Amersham chose wisely.

The Bill is an important one, and Labour supports its core goal to improve the testing regime for harmful substances in prisons. Substance misuse in prisons is rife, and we are told that it fuels violence and health problems and remains a real barrier to rehabilitation. The physical and mental impact on prison staff, including those who work to provide healthcare and education, can be truly awful.

As the hon. Member for North West Durham said, the current system for enabling substances to be tested within our prisons is just not responsive enough. The drugs that are being produced change rapidly, as do the methods of smuggling them into our prisons. Removing the necessity to introduce secondary legislation every single time a new substance needs to be added to the testing regime is a necessary and proportionate change, which is of a piece with the broader changes made several years ago by the Psychoactive Substances Act 2016.

I served on the Committee for the 2016 Act. If we are being frank, we probably should have provided for this issue in that measure. However, it is very welcome to have a statutory basis for anonymous prevalence testing, so that prisons and healthcare staff, prison leaders and the Government can deliver a faster, more precise and more accurate understanding of what the problems with drugs are, and where they are within the prison system.

I have two brief questions about the drafting of the Bill, which I assume the Minister will be able to answer. I raised them quickly on Second Reading, but understandably at that point I did not receive a full response. As hon. Members will know, there are occasionally issues with the interpretation of the core definition of a psychoactive substance in the 2016 Act. This Bill would copy that definition into the Prison Act 1952. Are the Government confident that the definition is robust enough? Is there a risk that the general power to specify substances to be tested for in clause 47 (3A) of the Prison Act 1952 will still need to be used if these definitions fail? I have noticed that the consequential amendment 1 opts for amending the general power that I just mentioned, so that all controlled drugs—pharmacy medicine, prescription-only medicine, and psychoactive substances—are excluded.

An alternative step would be to repeal subsection (3A) entirely. It might be that the decision to amend it, rather than repeal it, reflects a judgement that the definition of a psychoactive substance could turn out to be inadequate, and that a power to set out specific substances to be tested will still be needed. However, if that amended power in subsection (3A) were ever used in the future, it would still have to make use of an amendment to the prison rules through secondary legislation. That process would be no faster than the one that currently exists. I do not say so to oppose a general power to specify substances remaining in legislation after this Bill hopefully becomes law. However, I would welcome further explanation. Is the general power simply there in case the other definitions drawn from the 2016 Act and the Human Medicines Regulations 2012 fail, or is it there for another purpose? Is another purpose envisaged? I am quite happy to take a note on this, electronically or otherwise, after the sitting. I have no intention of causing any difficulties, but these are issues that have been flagged to us, and we would be grateful for an explanation.

Two of the largest issues where we need greater clarity about the Government’s approach in response to this Bill are addressed by the new clauses that I will come on to introduce. I can see that I am likely to have a majority when I press them to a vote. Before we come on to those new clauses, I want to raise a few other questions and issues which it would be helpful for the Minister to address. The most important question for the Government in relation to this Bill is what are they going to use it for? Once the Bill has provided the power to rectify the problems with the testing regime for Spice and other novel psychoactive substances—as it is very early in the morning and I am a bit tired, I hope Members will accept that I will say “NPS” from now on—how are the Government going to use that power to create a healthier, more therapeutic, and more rehabilitative environment in our prisons?

Something that could result from more accurate testing is more widespread use of punishment for people found to have misused drugs in custody. As I said on Second Reading, this is a difficult issue, because sometimes the punishments that are used could make it harder for people to stop using drugs, rather than easier. Would the Minister tell us more about Government’s understanding of this? Has there been, or could there be, a review of the impact that different types of disciplinary intervention have had on people who are found to be misusing drugs in custody?

The Minister—rightly, in my view— has been looking keenly at the different ways that our courts can respond to offending in the community in a way that solves problems and does not make problems that clearly exist worse. I hear that next year we are going to be considering some of those welcome changes in the sentencing White Paper. In my view, it should be no different when people break the rules in prison. People in prison have had their liberty taken away as a punishment appropriate to their crime and, given the added challenges of living in prison and all that that brings, it is more, not less, important that the disciplinary actions taken solve problems and create the conditions for rehabilitation, not reoffending. The punishments announced in 2015 by the then Justice Secretary included bans on family visits, 21 days confined to cells, removal of TV access and more. We know that the use of drugs in prison can be, or is often thought to be, caused by inactivity, loss of hope and complete and utter desperation.

I worry that greater use of at least some of those punishments might inadvertently lead to people wanting to take more drugs to get themselves mentally out of the situation—even temporarily—that they find themselves in. I cannot imagine what it would be like to be locked up. I cannot imagine what it would be like to be locked in a cell—I am completely claustrophobic and antisocial—with someone I did not like for 23 hours a day. I could imagine in those circumstances, if I were a little bit different, wanting to get out of there in my head, at least temporarily.

--- Later in debate ---

[Lucy Frazer]

I am pleased that the hon. Gentleman has raised that point. As he repeated, we do have a multifaceted approach, including limiting the supply—the measures he identified are to do that—limiting demand and providing treatment. He is right that we did a pilot programme in 10 prisons, and as a result of that and other work, we have put forward a £100 million security package, which includes the airport scanners to detect drugs that have been ingested before being brought into prisons. We also have enhanced gate security for visitors and staff, we have mobile phone blockers and we have beefed up investment in the investigation of crimes, so that we can bring people to justice if do the things the hon. Member for West Ham talked about so passionately. We need to stop the crime of supply within our prisons.

The hon. Member for West Ham rightly focused on how we limit demand and actually treat people in our prisons. We have a number of initiatives on that. She will know about Holme House—our first drug recovery prison. It is a £9 million project jointly funded by the Ministry of Justice and the Department of Health and Social Care. I am pleased to say that that programme will be evaluated early next year; the early signs are good, but the formal evaluation will take place next year. We also have that on a small scale in a number of prisons. We have enhanced drug-free wings. The hon. Lady rightly says that we should not be punishing and that we should be encouraging, and these drug-free units encourage and incentivise people to live a drug-free life. That is something we are very committed to increasing.

Treatment is very important, as the hon. Member for West Ham mentioned, and we need to help people get on treatment programmes. She rightly said that 90% of people coming into prison, where they are on those programmes, do have access to treatments within three weeks. In fact, 53,193 adults accessed drug and alcohol treatment services within prisons and secure settings between 2018 and 2019. I am pleased to say that 27% of those who were discharged after completing their treatment were free of dependence. The programmes that we are putting in place, having detected people who have problems, are therefore working, and I am pleased to say that that figure is an increase from the 24% who were successfully free of drugs two years earlier.

The hon. Member is right to point out that people sometimes turn to drugs in prison, when they have no hope and not much else to do. That is why we are committed to ensuring that we increase purposeful activity that will get people jobs when they come out. As evidence of that, she will know about our £2.5 billion spending programme for prison builds. We are absolutely committed to providing spaces where people can do good work and have good education in prisons.

Of course, we need to help those who unfortunately become addicted in prison. I do not shy away from the fact that that happens, but the measures in the Bill and all the other measures that I have identified will help us do that.

The hon. Member rightly talked about rough sleepers, and the link between them and prison. Around 60% of rough sleepers have been in prison in the last year, so there is a clear correlation between offending and homelessness. I have spoken previously about the close work that my Department is doing with the Ministry of Housing, Communities and Local Government to ensure that we take people out of rough sleeping and into homes. That will have an impact on turning around the lives of those people who would otherwise come into our institutions.

In the spending review, the hon. Member will have seen the commitment to £237 million that the Prime Minister announced for accommodation for up to 6,000 rough sleepers. She will also have seen a further £144 million for associated support services and £262 million for substance misuse treatment services, which, when fully deployed, are expected to help more than 11,000 people a year. The Ministry of Housing, Communities and Local Government, through our joint work, is not only taking people off the street, but giving them the treatment they need for their addiction. That spending is a 60% increase on the 2019 SR.

The hon. Member talked about other transitions into the community and between prisons. She is right to identify those points. We are already doing a significant amount of work on transitions into the community. She mentioned the important work that is being done in Wandsworth. That is not one of our RECONNECT programmes, but she will know that we have a RECONNECT service that the NHS is rolling out across the country. That is doing exactly what she identifies: ensuring that those who leave prison engage with community health services and supporting them to make that transition easier. Having spoken to the NHS and the Department of Health and Social Care regularly, I know they are committed to rolling that out in the coming years, in full, everywhere and to every prison in the country.

I agree that there is more work to do on transferring between prisons. That relates to healthcare, NHS records and the work that we need do in prisons, but we are committed across the board to joining up the prisoner journey, not only in healthcare, but in other areas such as education.

The hon. Member mentioned naloxone. That point rightly comes up often, because it is important that, when we release prisoners who are addicted, there are no drastic consequences. Public Health England monitors the number of eligible prisoners who are given naloxone. Currently, 17% of those who have an opiate dependency get naloxone, which is up on previous years. I recognise that it could be more and I know that PHE is doing a piece of work at the moment to monitor performance in relation to take-home naloxone across all prison establishments and to identify best practice. I have spoken to them and they have an ambition that everybody will get it.

I hope I have addressed the hon. Member’s points. The Government are pleased to support the Bill that my right hon. Friend the Member for Chesham and Amersham promoted and that my hon. Friend the Member for North West Durham introduced today, and I commend it to the Committee.

[Mr Holden]

I thank hon. Members who have taken part today, and I pay tribute to my hon. Friend the Member for Hitchin and Harpenden, who tried to introduce the measure in a previous Session as a ten-minute rule Bill. It did not quite reach Committee stage, but we are rocking on. I hope we can keep it going today. I thank the hon. Members for West Ham and for Enfield, Southgate.

[Ms Brown]

I have been remiss, because I have not made it clear that I intend to move my new clauses. The hon. Gentleman might want to wait to thank me until I have divided the Committee several times. That is just a little suggestion.

--- Later in debate ---

[Mr Holden]

I will wait until later to heap praise on the hon. Lady.

Some important points have been raised by Members of different parties, particularly my hon. Friend the Member for Aylesbury, who has brought his expertise to bear today. I know he does not often speak outside Prime Minister’s questions, but I am glad he could grace us with his presence.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

Consequential amendments

Amendment made: 1, in clause 2, page 3, line 35, at end insert—

“(7) In the Prison and Young Offender Institution (Coronavirus, etc) (Amendment) (No. 3) Rules 2020 (S.I. 2020/1077)—

(a) omit rule 2(3), and

(b) omit rule 3(3).”—(Mr Richard Holden.)

S.I. 2020/1077 added a new substance to the list of “specified drugs” in the Prison and YOI Rules. That list is no longer needed because of the changes made by the Bill and so this amendment revokes the S.I.

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.

New Clause 1

Assessment of the effects and value for money of this Act

“(1) The Secretary of State must prepare an assessment of the value for money of the provisions of this Act in achieving their objectives.

(2) That assessment must consider—

(a) the extent to which the Act is achieving its objectives;

(b) the number of tests conducted;

(c) the number of positive results;

(d) the number of novel psychoactive substances found;

(e) the number of prescription-only substances found;

(f) the timeliness of updates to the testing regime when new substances are introduced into prisons;

(g) the amount spent on testing;

(h) the net effects on expenditure on the treatment of substance misuse;

(i) the effects of this Act on value for money in substance testing in prisons.

(3) A report on the assessment must be laid before Parliament no later than one year after the Act comes into force.”—(Ms Brown.)

Brought up, and read the First time.

[Ms Brown]

I beg to move, That the clause be read a Second time.