Approved Premises (Substance Testing) Bill

Rob Butler Excerpts

2nd reading
Friday 29th October 2021 Commons Chamber

[Rob Butler (Aylesbury) (Con)]

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

First, I declare my interest as a former non-executive director of Her Majesty’s Prison and Probation Service and a magistrate member of the Sentencing Council. I also want to thank all those, including Clerks, Whips, officials and the Minister, who helped me to get the Bill to this stage.

I have risen in this House on several occasions to speak about our prison and probation services, and I have paid tribute to the staff working in them, whom I genuinely consider to be the hidden heroes of our public services, but there is an important aspect of our justice system that I have not thus far highlighted: approved premises. Indeed, while many people are familiar with prisons and probation, there is much less awareness of approved premises, yet they provide a critical step in the rehabilitation of offenders. Let us never forget that rehabilitation means there will be less reoffending, and that in turn means fewer victims of crime—something each and every one of us in this House must surely welcome.

Approved premises are essentially hostels which provide temporary accommodation for people who have been released from prison but are considered to present the highest risk to the community. They also house a small number of people on bail as well as high-risk offenders serving community sentences. There are just over 100 APs in England and Wales, with about 2,300 bed spaces between them, and the average stay in them is 12 weeks. The role of approved premises is to ensure that those with the highest risk and most complex needs receive additional, targeted residential supervision and rehabilitative support.

Unfortunately, the number of deaths among approved premises residents has increased over recent years, and many of those deaths are believed to be related to taking drugs. As a result, the independent prisons and probation ombudsman has rightly made repeated recommendations about the urgent need for a comprehensive drugs strategy for the approved premises estate. I am sure that I surprise no one when I say that the use of drugs in approved premises can have a significant impact on the physical and mental wellbeing of residents in both the short and the long term. Of course, drug use also undermines a person’s ability to engage in work or other activities that would help their rehabilitation.

My Bill today is a response to this problem. It would enable approved premises to create a comprehensive framework for drug testing, and it would also bring them in line with the substance testing regime in prisons. This was established by the Prisons (Substance Testing) Act 2021, which was the private Member’s Bill promoted by our greatly missed colleague and my constituency neighbour Dame Cheryl Gillan. I was proud to serve on the Bill Committee for that legislation, and I am delighted to say that it received Royal Assent earlier this year, having been supported by all parties in this House, as I hope my Bill will be.

Currently, residents in approved premises can be tested for drugs only at the request of staff, in accordance with the house rules that are a condition of their residence. Although that provides a basis for drug testing, it does not set out a comprehensive statutory framework for the testing of illicit substances, the scope of substances for which testing can be conducted or the types of sample that may be taken. I submit that that needs to change.

One reason for the need for more formalised and widespread testing is that patterns of drug misuse in both custody and the community are changing. In particular, psychoactive substances have become much more prevalent within the illicit economy in approved premises. These are particularly unpleasant, and one of the most worrying aspects of them is their unpredictable impact on different individuals. Some people become catatonic after taking them. Others suffer convulsions, vomiting or temporary loss of vision. Still others become anxious, aggressive or even engage in extreme behaviours that almost defy the imagination. They can easily pose a serious danger to others and indeed to themselves.

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

I am grateful to my hon. Friend for speaking on this. I well remember the debate we had in Committee, when I picked up that Bill from Dame Cheryl, on prisons testing and substance misuse. I also remember speaking to those from the Prison Officers Association during the passage of that Bill, and they said to me that some of the interactions they were having with prisoners were off the scale, even compared with the issues they had with controlled substances, with prisoners attempting to commit suicide, in absolute rages and totally uncontrollable. Are those the sort of examples he is trying to pin down with this Bill so that things like that in treatment centres in the community can be addressed?

[Rob Butler]

My hon. Friend is absolutely right. Those are exactly the types of behaviour that cause real concern. I would like to take the opportunity to thank him for picking up the mantle on that prisons Bill from Dame Cheryl Gillan. He talked about the Prison Officers Association, and it is worth mentioning that, according to a recent staff survey in approved premises, the main substance of choice in those premises is now psychoactive substances, so anything we can do to stamp out their use is bound to be of benefit.

A further challenge comes from prescription and pharmacy medicines, which can also be abused by some residents when medication is brought into the premises from outside. That may have been legally obtained by somebody else or it may have been imported, but it is then taken by residents in an illicit way to get high, and that can at times even prove lethal. Yet the current drugs testing regime in approved premises can test only for four groups of drugs—opioids, cannabis, cocaine and amphetamines. Therefore, first, my Bill will extend the range of substances that can be tested to cover all forms of psychoactive substance as well as prescription and pharmacy medicines, in addition of course to the existing drugs. Alongside that, the Bill also introduces urine testing rather than the currently used oral fluid testing. There are relatively few drugs that can in fact be detected reliably in oral fluid. That means that the current testing regime is unable to identify much of the potential drug use among residents. As a result, it is not possible to tackle the problem.

[Ben Everitt (Milton Keynes North) (Con)]

I am interested in exploring my hon. Friend’s point about the scope of the testing. As Members across the House will know, legislating to proscribe drugs is something of a retrospective game because almost every week more drugs appear on the market and in head shops. We seem to be chasing our tail when it comes to these things, and they can be harmful or they can be innocent. Where would he place the limit on the scope of testing?

[Rob Butler]

That has been addressed recently through legislation to ensure that the appropriate Department can incorporate different types of psychoactive substances so that there does not need to be primary legislation on each and every occasion a new substance is named. It is very easy to tinker with one or two of the chemical elements, thereby taking them out of the scope of what is illegal and what is legal. Thankfully, that has been addressed, so it would apply to this proposed legislation as well, making sure that we were not always chasing our tails. I thank my hon. Friend for making that very important point.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

I am grateful to my hon. Friend for promoting this Bill. It is clear that he speaks with great authority on the matter. From reading the notes and listening to him speak, it seems to me that the danger is not just to the people taking the drug. In the case of prescription medicine, residents who are trying to go straight are being bullied by residents who are trying to get the drugs off them. Could he set out how the testing regime he envisages would protect people who are desperately trying to be rehabilitated, go straight and become productive members of society again?

[Rob Butler]

My hon. Friend makes an interesting point. That can indeed be a risk, although having had conversations this week with the staff and management of approved premises, I have been reassured to learn that, for the most part, the staff look after any prescription medicines and issue them to residents at the appropriate time. Therefore, there is a little less concern than one might have thought about residents obtaining those drugs from others through distinctly unhelpful ways such as bullying. In fact, the current concerns seem to be rather more as I have described them—namely, people from outside obtaining substances legally and then sharing them illicitly, or, indeed, substances being obtained from overseas via the internet. My hon. Friend raises an important point and I know that the management of approved premises in Her Majesty’s Prison and Probation Service are keen to tackle it. They believe that they have already taken serious steps through their regime of handing out medication.

Let me turn to the reasons why it is preferable to test via urine. It is very clear that this will enable a wider range of substances to come under a testing regime. It will also, importantly, extend the time period in which testing can identify drug use. That is because some drugs are detectable for only 12 to 24 hours when using oral fluid, whereas when using urine, drugs such as heroin are detectable for up to five days.

The second aspect of my Bill aims to ensure that the Government understand the prevalence and nature of substance abuse in approved premises. It would allow HMPPS to use resident samples to test for the prevalence of various substances on an anonymised basis.

[Sara Britcliffe (Hyndburn) (Con)]

I thank my hon. Friend for bringing this important topic to the Chamber. Why does not the Bill suggest follicle samples as another means to test for substances?

[Rob Butler]

I thank my hon. Friend for raising that point, although I only half-thank her because I have to say that it is not a measure that I have thus far considered. I will take her up on it and find out more. If the Bill passes its Second Reading, I hope that she will serve on the Committee, so perhaps we could explore her suggestion at that stage. In the meantime I will endeavour to find out more, but I regret that that will probably not happen before I finish speaking today.

Prevalence testing on an anonymised basis would be key to helping HMPPS understand the ever changing drug landscape, and it would allow staff to take appropriate action to tackle the threat of drugs in those premises.

[Dr Ben Spencer (Runnymede and Weybridge) (Con)]

What is your feeling about what the current prevalence is? You mentioned four different drug groups and the extent of the testing required. When the testing happens, what do you expect the most prevalent drugs will be?

[Mr Deputy Speaker (Mr Nigel Evans)]

Just a reminder not to use the word “you”, please.

[Rob Butler]

I thank my hon. Friend for that intervention. The problem is that we do not know, and that is the reason to introduce prevalence testing. We know about individual cases where people have died, unfortunately, but we do not know the number of people who have taken drugs but it has not been detected. That is the whole purpose of introducing the Bill. If it passes and the measures are implemented, we will, in 12, 24 or 36 months, have a much clearer idea of the prevalence, but I would not want to hazard a guess on something that we do not yet know. My hon. Friend almost underlines the rationale for my Bill.

[Tom Randall (Gedling) (Con)]

This is an interesting debate on a subject in which I was not particularly well versed. These premises are in a community. If drugs are being taken, is there a knock-on effect on antisocial behaviour in the community, such as robbery or theft to fund drug taking? If so, would increased testing help to improve the standing and status of approved premises and make them more acceptable?

[Rob Butler]

My hon. Friend raises a very plausible scenario, but I am not aware of any specific evidence to suggest that. There is quite a strict regime in approved premises around the behaviour of residents. For example, they are required to abide by a curfew and their behaviour is very carefully scrutinised. If their behaviour is in breach of the rules, there are possible sanctions that could ultimately lead to a recall to prison. However, he highlighted a danger area. At present, most of the concern is about the wellbeing of individuals in the premises and, once they leave the premises and move into the community more widely, the danger of their continuing a drug habit that would likely lead them to engage in illegal behaviour. But ideally, the further testing that the Bill would introduce would reduce the chance of people succumbing to that temptation.

[Angela Richardson (Guildford) (Con)]

It is clear that the Bill aims to reduce the number of drug-related deaths on approved premises and help with the rehabilitation of offenders, but in widening the scope of what my hon. Friend wants to test for, what sanctions would be in place for those who possess, supply and use the increased range of substances?

[Rob Butler]

I will say a bit more about sanctions later, but first, and most importantly, the aim in approved premises is to help people on their journey to rehabilitation. If somebody fails a drugs test, the first step will be for the staff to engage in conversation with them, try to work out what the causes are and direct them towards the appropriate substance misuse organisation. Every single approved premises in the country—there are approximately 100—has a link with a substance misuse premises that can do that. However, if that behaviour were to continue, as I mentioned, more punitive sanctions are possible and could be implemented. If people were caught in possession of drugs of whatever type—let alone if there was a fear of supply—they would, of course, be subject to normal police intervention. If necessary, that would lead to a prosecution, but that would be beyond the scope of my Bill and in the normal course of the law, as it stands.

[Dehenna Davison (Bishop Auckland) (Con)]

I pay tribute to my hon. Friend’s fantastic campaigning on all matters of criminal justice since he got into the House. He is a true champion of this cause and I am grateful to him for bringing in the Bill. I am reassured to hear that early intervention is in place for those who fail drugs tests, but does he agree that we are sometimes too quick to recriminalise people who are really trying to rebuild their lives and that a more restorative approach is the right way forward?

[Rob Butler]

My hon. Friend’s point is absolutely spot on. That is why the first step will be to try to encourage people to help themselves. The answer to stopping people reoffending is not always to come down incredibly harshly the first time that people make a mistake. I remember that when I was involved with the Youth Justice Board I asked some young people, “What would you really like me to take away from my conversation with you, given that you have committed an offence?” They said, “That one mistake does not define your entire life.”

It is important to get the balance right: not letting people off if they commit offences time after time, but adopting a progressive approach. That is what the Bill seeks to do, and it is, I think, what the Government’s approach to criminal justice is all about. We need to be very tough at the hard end, but we also need to give people the opportunity to live a crime-free life if they can be helped to do that through positive interventions, rather than criminalising them.

[Jane Hunt (Loughborough) (Con)]

I entirely agree with my hon. Friend. People must serve their sentences, but then be given the opportunity to change, because that is how we really reduce reoffending,

[Rob Butler]

Absolutely

Let me now say a little more about the consequences if someone tests positive, to make sure that I have it on the record. The first step is a discussion with the resident, which should lead to a plan to help them tackle the problem and stop using drugs with the support of the substance misuse services to which I referred earlier. The aim, as I have said repeatedly, is rehabilitation. Of course, if the drug use continued or resulted in wider problems—as mentioned by my hon. Friend the Member for Gedling (Tom Randall)—that could lead to breach proceedings or, in extremis, a recall to prison.

[Mrs Natalie Elphicke (Dover) (Con)]

I know that my hon. Friend shares my concern that, during the pandemic, prisons were largely shut down, with training, education and skills, as well as drug support and other medical interventions, no longer available to prisoners. Is it not vital for the Government to take urgent steps to support prisoners in the way that my hon. Friend has described, so that when they come out, they can move forward in their lives?

[Rob Butler]

I agree with my hon. Friend. Throughout the pandemic, Ministers have frequently come to the Justice Committee to talk to us and account for what is going on in prisons.

At the beginning of the pandemic, given the presence of so many people in such close and confined circumstances, it was feared that prisons could easily become super-spreader locations, and it is a huge tribute to the staff in our prisons, at all levels, that that did not happen. In fact, the number of people who succumbed to covid-19 on the custodial estate was very small indeed. Achieving that required restrictions of their normal activities, on the rehabilitation programmes and so on, and of course we want to overcome that as quickly as possible, but I think that the key aim has been to save lives, and I pay tribute to HMPPS for achieving that.

I have had the opportunity to talk to staff involved in running approved premises, and they believe that their colleagues—and, importantly, residents—would welcome these proposals. My final word—

[Mr Holden]

Will my hon. Friend give way?

[Rob Butler]

It will not be my final word, because I am taking another intervention!

[Mr Holden]

I was a special adviser in the House of Lords during the passage of the Psychoactive Substances Act 2016. That Act specifically excluded caffeine, which is by far the most broadly used psychoactive substance available. I note that the Bill does not currently refer to the exclusions in the Act, but merely mentions psychoactive substances. Will my hon. Friend assure me that at a later stage—perhaps in Committee, if his Bill makes it that far—caffeine will be excluded, so that I shall be able to support the Bill’s Second Reading?

[Rob Butler]

I hope that my hon. Friend will support the Bill today, and that sounded like a very good effort at volunteering to be a member of the Bill Committee. I am now drawing to a conclusion, and I beg the indulgence of my hon. Friends in not making further interventions for the moment.

The Bill may seem fairly insignificant or even trivial to some, but drug use is pervasive. It is so often the major driver in the commission of crimes. In the 12 years that I spent as a magistrate, I lost count of the number of defendants who appeared in front of me either because they were stealing to feed their habit, or because they had committed the offence when they were high. Anything we can do to help people steer clear of drugs, including psychoactive substances and illicit medication, has the potential to cut crime.

The House has the opportunity today to support provisions that would enable us to better identify and respond to new and emerging patterns of drug use in approved premises, which would help to reduce the number of drug-related deaths and, ultimately, support reductions in reoffending. I hope that the benefits I have laid out in some detail are clear and that the Bill will gain support from Members on both sides.

--- Later in debate ---

[Rob Butler]

With the leave of the House, I thank Members on both sides of the House for their support for my Bill. I particularly pay tribute to my hon. Friends the Members for Darlington (Peter Gibson) and for Runnymede and Weybridge (Dr Spencer) for their speeches, and to many other colleagues for their thoughtful interventions.

I am particularly grateful to the hon. Member for Stockton North (Alex Cunningham) for his words of support, and I take all his comments on board. I look forward to working together if this Bill progresses.

I also repeat my appreciation to those who have assisted me on the Bill’s progress so far. I feel sure that if the Bill eventually reaches the statute book, it will bring real benefits to society. Everybody present here today will have contributed to that. All our communities are touched by crime, and we all know that drugs play a major part. We will all have shared in clamping down on that crime and reducing the number of victims.

I am very grateful to the Minister for his expert knowledge of follicle testing, which I hope answered the question of my hon. Friend the Member for Hyndburn (Sara Britcliffe).

I have no more to say other than, “Thank you very much indeed.” I look forward to continuing to work with all my colleagues to get this Bill on to the statute book.

Question put and agreed to.

Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).

Approved Premises (Substance Testing) Bill (Morning sitting)

Rob Butler Excerpts

Committee stage
Wednesday 15th December 2021 Public Bill Committees

[The Chair]

With this it will be convenient to discuss clause 2 stand part.

[Rob Butler (Aylesbury) (Con)]

It is a pleasure to serve under your chairmanship, Mr Mundell. I must declare that, prior to my election, I was a non-executive director of Her Majesty’s Prison and Probation Service and a magistrate member of the Sentencing Council.

As I highlighted on Second Reading, patterns of drug misuse in both custody and the community are changing. In recent years, psychoactive substances have become much more prevalent in the illicit economy in approved premises. Prescription medicines are also abused by some residents, which sometimes can prove lethal. The use of drugs in approved premises can have a significant impact on the physical and mental wellbeing of individuals. Taking substances undermines an offender’s ability to engage in rehabilitation.

The measures set out in clause 1 would allow Her Majesty’s Prison and Probation Service to create a comprehensive drug-testing framework in approved premises. That would bring us in line with the testing regime currently used across the prison estate. It would allow the drug-testing framework to respond effectively and flexibly to changing patterns of drug misuse and improve the identification of residents misusing substances, ensuring that appropriate care planning and referrals to treatment are in place. It is important to emphasise that the first step is to try to ensure guidance and assistance for those found to have illicit substances in their bodies as a result of testing.

Clause 1 inserts proposed new section 13A into the Offender Management Act 2007. It extends the range of substances that can be tested for and makes provision for HMPPS to test all residents in approved premises for controlled drugs, psychoactive substances and prescription-only medicines. It achieves that by using the definitions of those substances and medicines already set out in legislation, including the Misuse of Drugs Act 1971, the Psychoactive Substances Act 2016 and the Human Medicines Regulations 2012.

Subsection (2) of proposed new section 13A contains an express power that, in accordance with an authorisation given by the approved premises manager, a member of approved premises staff may require a resident to provide a sample of urine to ascertain whether the resident has in their body a controlled drug, a prescription-only medicine or psychoactive substance. The move to urine testing, rather than the currently used oral fluid testing, will allow HMPPS to test for a wide range of different substances for longer. Depending upon the drug, in oral fluid the drug would be detectable for perhaps only 12 to 24 hours. In urine testing, some drugs such as heroin will be detectable for up to five days. In addition to, or instead of urine, subsection (3) provides for a sample of any other description to be required, provided that it is not an intimate sample as defined in section 65 of the Police and Criminal Evidence Act 1984.

Subsections (5) and (6) set out a requirement for staff to

“have regard to any guidance…issued by the Secretary of State”

regarding the exercise of the drug-testing power. Guidance is expected to be along similar lines to the existing guidance on drug testing in approved premises, which contains detailed procedures and instructions to ensure the integrity of the testing and ensure that accurate records are kept.

Proposed new section 13A also makes provision for anonymised prevalence testing for controlled drugs, medicinal products and psychoactive substances. With an express power to conduct prevalence testing, HMPPS will be better able to understand the ever-changing drug landscape and therefore take appropriate action to tackle the threat of drugs in approved premises efficiently and in good time.

The new section would also allow the Secretary of State to make any necessary changes in the event of any future change to the Human Medicines Regulations 2012 or

“other subordinate legislation…which relates to human medicines”,

so that if a substance definition referred to in the new section were revoked in future, we could amend the Offender Management Act 2007 accordingly to include that definition or refer to alternative legislation. That will assure that we can avoid any impact on the approved premises drug-testing framework.

Clause 2 confirms the Bill’s short title, makes provision for the Bill to come into force by regulations and provides that it will extend to England and Wales only, as offender management is devolved in Scotland and Northern Ireland.

--- Later in debate ---

[The Minister for Crime and Policing (Kit Malthouse)]

It is a pleasure, as always, to appear under your wise and guiding hand, Mr Mundell. I start by extending my wholehearted support for my hon. Friend the Member for Aylesbury. I thank him for introducing this important Bill.

Having the privilege of being Minister for Crime and Policing, I am aware of how necessary these provisions are. Drugs not only have an impact on an individual’s physical and mental state, but they also play an important role when it comes to crime, not just because of the direct harm they do, but because of the wide range of criminality they can drive. In the year to March 2020, 48% of homicides were drug-related. The Government are committed to cutting crime and dismantling the entire business model of drugs, from supply to demand.

We set this out in the beating crime plan, which we published in the summer, and our commitment to tackling drug use is set out clearly in our cross-Government drugs strategy and the prisons strategy White Paper, both published last week. The drugs strategy represents an ambitious, 10-year generational commitment to work across Government to address illegal drug use, including increased and enhanced testing in prisons and, I hope, approved premises. The strategy is the formal, substantive response to the exceptional and comprehensive independent review of drugs led by Dame Carol Black, and it accepts all her main recommendations.

Our strategy sets out three core priorities: cutting off drug supply, creating a world-class treatment and recovery system, and achieving a generational shift in the demand for drugs. Our vision goes beyond treatment. People who suffer from addiction have multiple and complex needs for which they need support. We are leading the world in delivering a joined-up package across treatment, accommodation and employment. Drug treatment will be joined up with our investment in NHS mental health services, so that people’s wider needs can be addressed together.

As set out in the prisons White Paper, our goal is for prisons to have a culture of zero tolerance to drugs and an approach that ensures meaningful and lasting recovery for all prisoners. We will ensure that every offender has access to the treatment they need and a plan to help them to turn their backs on crime. Prisoners will be supported to use their time in prison to become free of drugs. On release, accommodation and employment support will help them to stay away from drugs and crime.

It is important, however, that work to tackle substance misuse continues outside prison. Our drugs strategy is underpinned by record investment of nearly £900 million of additional funding over the next three-year spending review period, taking the total investment on combating drugs over the next three years to £3 billion. From this we will invest more than £2.8 billion over the next three years to create a world-class treatment and recovery system. This includes £780 million of additional investment —the largest ever single increase in treatment and recovery funding.

The Bill will allow us to further deliver on the commitments set out in the beating crime plan, the prisons White Paper and our drugs strategy to tackle drugs misuse, cut crime and save lives. As my hon. Friend the Member for Aylesbury set out, the Bill will implement a rigorous drug-testing framework, enabling mandatory drug testing for psychoactive substances, together with prescription and pharmacy medicines. Supported by the change in urine testing, this means that we can reliably test for a wide number of different substances for longer.

The Bill will also put prevalence testing on a firmer statutory footing, which allows us to better identify emerging trends and ensure we are able to react quickly to changes in drug use. The combined measures in the Bill will ensure consistency of testing and treatment from prison to the community and will be vital in ensuring that approved premises, which we are of course expanding, are safe and drug-free, and that the risk of serious harm is reduced for the individual, other residents and the wider public.

The Bill will help us tackle drug use in approved premises, ensure that staff in them are able to respond effectively and provide residents with the necessary treatment and support. That will support this Government’s commitment to rehabilitate offenders, reduce reoffending and beat crime. The Government are pleased to support the Bill, and I congratulate my hon. Friend the Member for Aylesbury on bringing it forward. I commend the Bill to the Committee.

[Rob Butler]

I thank all Members present here today—both Front-Bench and Back-Bench colleagues. I realise that there are many demands on everybody’s time, particularly this close to Christmas. It is important to underline that those here today have shown an interest in an important, but often unrecognised, part of our criminal justice system. Approved premises can make a significant contribution to an offender's rehabilitation at an absolutely crucial moment in their transition from prison back to the community. Helping those tempted or enticed into using drugs is a vital element of achieving success, thereby reducing reoffending and so cutting the number of victims of crime.

The Opposition spokeswoman, the hon. Member for Lewisham West and Penge, talked about the benefit to residents in approved premises and the wider public. It is important that we do not lose sight of that. I will put on the record more detail on the consequences if someone fails a drug test, to reassure her further about the approach that will be taken in approved premises. The first step is that there would be a discussion between that resident and the member of staff in the approved premises. That might then lead to an improvement plan being initiated; that would encompass referrals to the appropriate drug misuse services. The emphasis is very much on help and guidance, because we know that committing offences while under the influence of drugs is a huge problem. That is, therefore, a key element in trying to overcome that problem. It is important to say that this would not be a purely punitive exercise. However, if other behaviours were associated with that drug use, that could lead to other actions being taken. There is an emphasis on rehabilitation and assistance, but it does not lose sight of the need for punitive action, if required.

I am grateful to my hon. Friend the Member for Darlington for highlighting the impact that this legislation can have. In response to the intervention from the hon. Member for Garston and Halewood, a colleague on the Justice Committee, I am glad that she has focused on deterrence and I agree with her point entirely. Growing awareness of the fact that this testing exists in approved premises is, one hopes, likely to discourage residents of those approved premises from being tempted into drug misuse—whether that is of psychoactive substances, illicitly obtained prescription medicines or more conventional illegal drugs. Finally, I am very grateful to the Minister for highlighting the part that this legislation could play in an overall, long-term drugs strategy, as was proposed last week.

I offer my sincere gratitude to the staff in the Ministry of Justice—one of whom is at the back of the Committee Room—who have been a huge support in the preparation of this Bill and its progress thus far. I also thank members of the House staff; I am not sure whether I am allowed to name them individually, but they know who they are. I pay tribute to those in Ministry of Justice, whether working on the frontline or in the Bill team itself, for their commitment to helping offenders turn around their lives through this legislation.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

[The Chair]

At this stage I could afford Mr Butler a further opportunity to say something, but I think he set out his thanks to those who have been involved in getting the Bill to this stage in his previous remarks.

Bill to be reported, without amendment.

Approved Premises (Substance Testing) Bill

Rob Butler Excerpts

3rd reading
Friday 21st January 2022 Commons Chamber

[Rob Butler (Aylesbury) (Con)]

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

First, I declare my interest as a former non-executive director of Her Majesty’s Prison and Probation Service and a magistrate member of the Sentencing Council. Approved premises are an unsung part of a largely unsung service, but just as part of the successful functioning of our society and democracy is a criminal justice system that is fair and fit for purpose, approved premises are a critical element of the continuum between custody and community for a significant number of those who have broken the law.

There are approximately 100 approved premises across England and Wales, with some 2,300 bed spaces between them. Primarily, they provide temporary accommodation for offenders who have been released from prison but are still deemed to pose a high risk, or those who have the most complex needs and so need to receive additional, targeted residential supervision and rehabilitative support.

I make no apology for repeating the point I have made at previous stages of the passage of this Bill: it is rehabilitation that is key. Whatever the views of individual Members or different parties across the House about the causes of crime or harshness of sentencing, we all want to see fewer victims of crime, yet despite the best efforts of skilled, dedicated, committed and caring prison officers and probation staff, to whom I pay tribute, reoffending rates remain stubbornly high. In fact, as hon. and right hon. Members may be aware, around 80% of crime that receives a caution or conviction is committed by a repeat offender.

We know that drugs play a massive role in offending, whether that is committing crimes while the offender is under the influence of drugs or committing crimes to feed the habit. Indeed, Dame Carol Black’s review of drugs estimated that the total cost of harms related to illicit drug use in England was more than £19 billion in 2017-18. Drug-related crime was the main driver of the total costs, with recorded offences committed in England by drug users amounting to £9.3 billion in that period. Action to reduce drug use is an important part of helping people who are newly released from prison and at acute risk of succumbing to the temptation of a return to substance misuse.

[Nickie Aiken (Cities of London and Westminster) (Con)]

I congratulate my hon. Friend on his private Member’s Bill. In the Mayor of London’s suggested new policy, he is looking to allow young people who are caught with drugs in Greenwich, Bexley and Lewisham not to face any offence or be brought to justice and to be let off the hook. Does my hon. Friend agree that really small amounts of drugs can lead to greater issues for young people in the long term and may even lead them to go into crime? Surely it is about teaching young people from the very start that drugs are not the answer to anything.

--- Later in debate ---

[Rob Butler]

My hon. Friend raises an important point. She is absolutely right that drugs are never the answer, and we need to make sure we tackle the blight that they bring. Thames Valley police, which covers the area of Aylesbury, has a very interesting programme of diversion. Diversion for young people does not mean letting people off the hook, but it does sometimes mean steering them towards help, rather than necessarily taking them to court as a first step. That can sometimes be a very valuable part of the process of helping young people make the right decisions ultimately, and that feeds into the approach that staff in approved premises will take towards people who are tested, if this Bill becomes law. I thank my hon. Friend for raising that point, and I will build on it a little when we get to the specifics of how it applies to this Bill.

Based on the context I have set out, this legislation is very much needed. Sadly, in recent years the number of deaths among residents in approved premises has increased, and many of those deaths are believed to be related to drugs. As I have highlighted previously, it is an unfortunate fact that patterns of drug misuse both in custody and in the community are changing for the worse. In recent years, psychoactive substances have become much more prevalent in the illicit economy in approved premises—indeed, a recent questionnaire of staff in approved premises suggested that they are now the primary substance of choice.

Psychoactive substances can be especially dangerous, not least because of the unpredictability of their effect. In some cases they appear to have almost no effect and perhaps leave the user just dozing slightly, but it can be much worse and they can be left in a virtually catatonic state. In other cases the use of psychoactive substances can result in convulsions, vomiting, the temporary loss of vision or speech, reduced levels of consciousness and anxiety.

It is more concerning still that the use of psychoactive substances can provoke extreme, volatile or unpredictable behaviour that can often be violent. That poses a serious risk not only to the person who has taken the substance but to people nearby. Members may have seen a recent television documentary that showed prisoners in jail who were thought to have taken psychoactive substances and who behaved as though they were animals: they were literally on the floor, howling and fighting extremely aggressively. It was profoundly disturbing to watch such scenes.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

I congratulate my hon. Friend on getting the Bill to this stage—and further, we hope, later today. He is right to raise the problem with psychoactive substances and the risk of people turning violent or aggressive. Is there not a risk of a domino effect? If people are on the mend and clean in approved premises but then go into an unstable environment, that is more likely to put them back on the path that we are trying to get them off.

[Rob Butler]

My hon. Friend gets to the nub of the challenge we face, and I glad he has highlighted it. I express my appreciation for his work with a similar Bill on substance testing in prisons that he stewarded through the previous Session, inspired by our former colleague, the much-missed former Member for Chesham and Amersham, Dame Cheryl Gillan, about whom I shall say a little more later. He picked up the mantle and speaks with great expertise in this policy area.

[Sir Greg Knight (East Yorkshire) (Con)]

I congratulate my hon. Friend on getting his Bill to this stage. Will the results of the anonymous testing be published?

[Rob Butler]

I believe that will happen. I defer to the Minister for the expert technical advice, but my understanding is that generally the data that arises will be published. The prime purpose of the collection of the anonymised data is to enable HMPPS staff to ascertain patterns of drug use, to look in particular at what types of drugs or substances are used more widely and then to come up with programmes to tackle the problems. I apologise that I cannot give my right hon. Friend a precise answer; I commit to writing to him with the appropriate response if the Minister is unable to answer him in her speech. I hope he will accept that commitment for the moment.

It is worth highlighting that even prescription medicines are abused by some residents in approved premises. Occasionally, that can prove lethal. A recent internal survey of approved premises staff found that more than 50% of them felt that prescription medication was a problem. This merits a few words of explanation, because I am talking not about medicines prescribed to the resident who has been tested but about prescription medicines that have been obtained by the person who takes them without a prescription—for example, from foreign companies via the internet—or that have been given to the resident by somebody else to whom they were prescribed. Prescription medicines are of course appropriate for those to whom they have been prescribed, but they can pose a real danger if they are taken without medical advice or in combination with other medicines. If that happens, the consequence can sometimes be fatal because of the level of toxicity reached in the human body.

[James Sunderland (Bracknell) (Con)]

My constituency of Bracknell has a drugs problem, and drugs are, of course, endemic across the UK and beyond. I wish, briefly, to commend all those involved in the fight against drugs, including the police, the blue-light services, the NHS, probation services, local councils. However, more needs to be done, which is why I commend my hon. Friend for his Bill and thoroughly support it. Does he agree that the utility of his Bill, when it comes to approved premises, is that it identifies those who are clearly still taking drugs as part of that process but, more importantly, it identifies people who may be taking drugs and are in need of further rehabilitation and support? Can I ask him therefore to commend the very positive aspects of his Bill?

[Rob Butler]

That is exactly the point I raised earlier when I mentioned the key being rehabilitation. I will come on to talk a little about exactly what will happen if somebody fails a drug test once the Bill is implemented, should it end up passing today and making it through the other place.

[James Wild (North West Norfolk) (Con)]

My hon. Friend says he will come on to the consequences for people failing a test. However, what if someone refuses to take a test? What actions could happen in that circumstance?

--- Later in debate ---

[Rob Butler]

If my hon. Friend is patient, I will also come on to that point in just a moment. It is all in my speech, I promise.

Returning to the need for this Bill, the Prisons and Probation Ombudsman, which investigates deaths in custody, has made repeated recommendations on the urgent need for a comprehensive drug strategy for the approved premises estate, including expanding the range of drugs for which tests can take place. The Bill will do exactly that.

Of course, deaths are not commonplace in AP, and we should not imply that they are. However, the impact of drugs on the physical and mental wellbeing of individuals in both the short and long term is profound. Drug use also undermines an offender’s ability to engage in rehabilitation, which was mentioned by my hon. Friend the Member for Bracknell (James Sunderland), and potentially hampers an offender’s efforts to turn their back on crime at the very moment they most need to desist and begin a new law-abiding life.

The Bill will enable Her Majesty’s Prison and Probation Service to create a comprehensive framework for drug testing in approved premises. It will bring APs in line with the testing regime that was recently introduced across the prison estate—to which I referred a moment ago, in response to the intervention by my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell)—and that was established by the Prisons (Substance Testing) Bill, which was introduced in the last Session in the name of the former right hon. Member for Chesham and Amersham, the late Dame Cheryl Gillan.

Dame Cheryl and I discussed her Bill in some detail; she knew I had experience in this area and was very interested in it. She was very clear on the positive impact that these changes could have on prisoners. The fact that her Bill received no opposition during its passage and received Royal Assent is just one further example of the tremendous legacy left by Dame Cheryl. She is very much missed in this place and, I would like to say, across the whole of Buckinghamshire and more widely across the country.

I recognise that some right hon. and hon. Members might wonder why drug testing does not already exist in approved premises. I would like to reassure them that there is already some provision in place, although it is far from sufficient for today’s landscape of substance misuse. Currently, residents are tested for drugs if they are asked to do so by staff in accordance with the house rules that they accept as a condition of their residence in the approved premises. Although that provides a basis for some drug testing, it does not set out a comprehensive statutory framework for the testing of illicit substances, for the type or scope of substances that may be tested, or for the types of samples that may be taken. What is more, at present, HMPPS tests residents only on a risk and suspicion regime and can test for only four groups: opioids, cannabis, cocaine and amphetamines. In short, the current testing regime is unsatisfactory and insufficient, hence the need for the Bill before the House today.

[Dr Neil Hudson (Penrith and The Border) (Con)]

I congratulate my hon. Friend on bringing his Bill this far, and I wish him well in its further passage. It is an important Bill. He has fluently described the changing patterns of drug use, the different substances and the ever-changing types of drugs used that are a blight on our society. Does he agree that, by bringing forward a robust and regulated drug-testing system, his Bill will provide an effective response to the ever-changing picture of the types of drugs in use? He has mentioned psychoactive substances. Given that ever-changing picture, an approved testing regime will help.

[Rob Butler]

I thank my hon. Friend for his intervention; once again he demonstrates knowledge of the impact of drugs on the human body. He has expertise on animal bodies rather than human bodies, but he demonstrates none the less a profound understanding of pharmacology and the changing pattern of drugs. There has been great news about prescription medication—we have seen real advances in drugs. However, there is a flipside to that, which is that there is an ever-growing group of criminals who seek to exploit scientific development and advances, and use them to prey on the most vulnerable in society. What we need to do is help those who might fall prey to that victimisation. That is why this testing regime will result in help, guidance and support, alongside potentially criminal consequences if the misuse is continued or results in particularly poor behaviour.

[Dr Hudson]

I am grateful to my hon. Friend for giving way again. He brings up the point about the different types of drugs that are available. I was not going to bring this up, but he has made the important point that some of the drugs that are misused in society are used in a veterinary setting, perhaps for analgesia and anaesthesia—ketamine, for instance. It is important that legislation is passed that mitigates, reduces and cancels out the inappropriate use of drugs that are so beneficial in human and veterinary medicine, but create such a blight for people if they are misused. They are dangerous and potentially fatal.

[Rob Butler]

Again, I thank my hon. Friend for sharing his expertise and contributing to the greater education of Members across this House. By expanding the range of substances that can be tested for, and taking the step to require that testing be done on urine, the Bill will increase HMPPS’s ability to detect and address drug use quickly and efficiently. As I have already indicated, the Bill will extend the range of substances that can be tested for. It makes provision to test all residents in approved premises for controlled drugs, psychoactive substances and prescription-only medicines.

I will now move on to the manner of testing. Approved premises currently test for drugs using oral fluids. However, relatively few drugs can be detected reliably in oral fluid. That means that the current testing regime has a limited capacity to identify drug use among residents. As a result, residents’ needs are not identified and treatment and care cannot be planned or managed effectively. The move to urine testing will allow HMPPS to both test for a much wider range of substances and, crucially, provide a longer timeframe in which to detect the use of illicit substances. That is because certain drugs are only detectable for a relatively short period of time in oral fluid—12 to 24 hours—but in urine some drugs, such as heroin, are detectable for up to five days. Clearly, this increases the opportunity to detect the use of substances and will provide an additional deterrent to those who might be tempted to abuse them.

[Sir Greg Knight]

I am grateful to my hon. Friend for giving way again—he is being very generous. I have a question for him, but I do not want him to think that because I am questioning what he is doing I am opposed to it. I am not—I support him. Could this new power fall foul of article 8 of the European convention on human rights, and if so, what would be the consequences of this?

[Rob Butler]

My understanding is that, in the preparation of the detailed proposals for the implementation of this Bill, colleagues at the Ministry of Justice have considered exactly that and do not believe it is of concern. They believe that the proposals all comply with such legislation.

The introduction of prevalence testing in this Bill will enable HMPPS to increase understanding of the ever-changing drug landscape and, in turn, allow staff to take appropriate action to tackle the threat of drugs in approved premises. After all, it is difficult to work out what to do to solve a problem, or how much resource to devote to it, if the extent of the problem is not known in the first place. The provision in the Bill to undertake periodic prevalence testing will entail the use of residents’ samples to test for the prevalence of controlled drugs, psychoactive substances and prescription-only medicines on an anonymised basis, as was indicated earlier.

In sum, the framework provided for by the Bill will enable HMPPS to respond effectively and flexibly to changing patterns of drug misuse. It will enable HMPPS to improve the identification of residents who are misusing substances to enable robust and appropriate referrals into treatment, together with the development of appropriate targeted care planning. It will enable better identification of elevating or decreasing risk of serious harm to the public based on a resident’s drug misuse. Finally, it will support the development of a comprehensive drugs strategy, building a body of evidence on drug misuse within the resident cohort of APs, which will widen understanding and identification of the corresponding and consequential actions that need to take place, either at a practical level by HMPPS or at a policy level in the Ministry of Justice.

I believe that, as a result, the Bill will have a tangible effect. It will enable us to better identify and respond to new and emerging patterns of drug use in approved premises, help provide the necessary care and treatment for individuals and, ultimately, support reductions in reoffending. Throughout the passage of the Bill and, indeed, throughout my speech, I have been grateful for the support of colleagues across the House. Many of them were unfamiliar with the challenge that the legislation attempts to address and, quite understandably, several have raised specific questions, so, as promised, I will take a few moments to give a little more context and detail on the appropriate areas.

In terms of the change in drug testing practice, the new regime will test every resident at least twice during their stay in the approved premise. A typical stay is approximately 12 weeks. For those who have been imprisoned on terrorism offences, it can be up to a year, but the average stay is about 12 weeks. There will potentially be two tests during that 12-week period, and HMPPS anticipates the consequence of that will be around 20,000 tests a year. Colleagues may remember I mentioned the current risk and suspicion-based testing regime. That will continue on top of the enhanced regime: the testing at specified times in the approved premises, which the Bill will establish. If staff are suspicious or risks are identified, there will be testing on top of that.

The consequences for someone failing a drug test are absolutely critical. The initial step would be a discussion between a staff member and the resident, and the primary aim would be to tackle the misuse. At that first stage, an improvement plan is likely to be initiated. That could incorporate referrals to appropriate services to provide the right help for each individual, probably consisting of signposting or the referral of residents to substance misuse services, and liaison with their probation officer. I want to emphasise that, although there needs to be rigour and discipline in approved premises, my aim in the Bill is for it not to be a purely punitive exercise. If, though, the drug use was a direct breach of a licence condition or it resulted in inappropriate behaviour, it could ultimately result in a recall to prison. However, HMPPS does not, as a matter of course, initiate breach or recall based purely on an initial positive drug test.

Consideration has also been given to the possible reaction of residents in approved premises when the new regime is introduced, not least given the vulnerable stage of their progress from prison to the community at that stage. Naturally, neither I nor the MOJ would want to do anything to jeopardise progress towards rehabilitation. Given that residents already sign an induction pack, which includes a number of rules, including the limited drugs testing I explained earlier, it is not expected or foreseen that there will be a significant problem. What is more, for those arriving at APs from prison, they will already have experience of the enhanced testing regime being proposed from their time in custody. Indeed, staff at approved premises to whom I spoke suggested that the change could be regarded positively by residents because it does, after all, signify increased investment in their wellbeing and rehabilitation.

My hon. Friend the Member for North West Norfolk (James Wild) asked about the consequences if a resident refuses to comply with the terms of the compulsory drug testing regime. In that situation, if they are on conditional bail with testing as a condition and they are not complying with the terms of the regime, they will have breached their condition of bail. There are some people in approved premises who are deemed to be at high risk and are there while still on bail, as opposed to those who are in the approved premises having been released from custody. In that situation, if they have breached their bail, they can be arrested by the police and brought back to court, where the magistrates or judges have three options. They can continue the bail conditions as they are—essentially, reimposing the same conditions. They can make the conditions more stringent. Or they could, ultimately, remand the person in custody. If a resident on licence—someone who has been released from prison and is in approved premises almost as a halfway house between custody and the community—declines to be tested, consideration will be given to their suitability to stay within those approved premises, because there is that contract of engagement as part of going to the approved premises, and that could also result in their recall to prison.

We must always be aware of the financial implications of new policies. HMPPS estimates that when it implements the change in testing, it will cost approximately £1.2 million per year to carry out the enhanced testing regime with residents of approved premises. The current annual budget for drug testing in approved premises is £350,000, so the implementation of this Bill would see an increase of some £850,000. However, it is worth bearing it in mind that the Ministry of Justice has indicated that it has evidence that shows that drug treatment provides a return to society of £4 for every £1 that is invested, and that increases to a return to society of £21 over a period of 10 years. I would therefore suggest that the testing proposed in the Bill and the subsequent treatment in fact represent very sound spending, which I am sure will be music to the ears of my right hon. Friend the Chancellor of the Exchequer.

I hope that I have addressed as fully as possible the aims of the Bill and the potential impact that it could have. In many ways, it is a small step, a minor change, but having spent well over a decade in various roles in the criminal justice system, I am all too aware that the path to rehabilitation can be slow, painstaking and full of setbacks, but every little step can make a difference. Every day without drugs is a good day for someone who has previously been dependent on them. Every opportunity to increase the prospect of someone living a crime-free life is an opportunity that we should seize, and I am proud to do so today with the Third Reading of this Bill.

--- Later in debate ---

[Rob Butler]

With the leave of the House, I would like to thank all those who have assisted me in getting the Bill this far. First, though, I must apologise that in the heat of the moment, I inadvertently misled the House when I suggested that it was my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell) who stewarded the Prisons (Substance Testing) Act 2021 through the House on behalf of Dame Cheryl Gillan, when it was in fact my hon. Friend the Member for North West Durham (Mr Holden). I cannot think how I possibly mistook the two; I leave that to others.

[Aaron Bell]

I thank my hon. Friend for his generous apology. I suspect that as my hon. Friend the Member for North West Durham is five years younger than me, he may be getting an angry text from him, rather than me. [Laughter.] I understand that he has a similar problem with my hon. Friend the Member for North West Norfolk (James Wild): perhaps he could address that.

[Rob Butler]

I do indeed: it is my hon. Friend the Member for North West Norfolk who is often angry, because he is, I think, 10 years younger than I. I will move on, but I beg the indulgence of the House and apologise profusely for inadvertently misleading the House and Members.

First, I thank the Ministers in the Ministry of Justice. My right hon. Friend the Member for North West Hampshire (Kit Malthouse) has been alongside me throughout much of this process, but today, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) has picked up the mantle with her normal expertise on the brief. I am very grateful to her for stepping in today, and to both Ministers for their help, assistance and advice. I echo my hon. Friend’s words and extend my thanks to the Ministry of Justice civil servants whom she has just named. They have worked incredibly diligently on this Bill, devoting many hours of work to its progress, and have been a constant source of information, advice and—at times—just calm reassurance. I also thank you, Madam Deputy Speaker, Mr Speaker, and the other Deputy Speakers for your guidance and for ensuring that there was always a firm hand on the tiller.

On the parliamentary side, my thanks go to the Chairman of the Bill Committee, my hon. Friend the Member for Banff and Buchan (David Duguid), and all the Members who served under his chairmanship. If I may beg the House’s indulgence, for his expert knowledge of procedure, his willingness to answer even the most basic questions, and his warm, reassuring approach to a new MP potentially overwhelmed by the complexities of legislation, I record especial thanks to the Clerk of Private Member’s Bills, who sits at the table today. This would not have been possible without him, so I am deeply grateful to Adam Mellows-Facer. If I have broken protocol by naming him, I apologise, but I hope that all will understand the circumstances of doing so.

I thank my Whip, my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson). I also thank the Whip in charge of private Member’s Bills, my hon. Friend the Member for Castle Point (Rebecca Harris) for her military-like precision and firm guidance, which right now extends to waving me to sit down. I will do so in 15 seconds after I finally, and most importantly, pay tribute to the staff working in approved premises, working alongside people at an incredibly sensitive moment in their lives. As the Minister has summed up so well, we owe a great deal of gratitude to them.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Occupants of the Chair have great sympathy when Members are confused with other Members. It is particularly difficult when the largest part of a person’s physiognomy is hidden: it can sometimes be very difficult, especially when people hide themselves at the far ends of the Chamber, but the hon. Gentleman got through.

Question put and agreed to.

Bill accordingly read the Third time and passed.