Prisons (Substance Testing) Bill

Rob Butler Excerpts

Wednesday 2nd December 2020 Public Bill Committees

[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.

[Rob Butler (Aylesbury) (Con)]

Will the hon. Member give way?

[Ms Brown]

Can I just finish this, because it is not written down and otherwise I will lose my train of thought? This is something where some of us use alcohol. If we have had a rubbish day—not that it ever happens in this place, obviously—we go home for a very large gin and tonic. That in and of itself is almost a way of trying to come down from the stresses we have had and cope with them. Some people use alcohol in much worse ways than that and do not have it under control. All I am trying to say is that we should try and walk for a few minutes in the moccasins of those who find themselves imprisoned and are struggling mentally with all that being in prison means—being separated from their families and children and having their liberty constrained.

[Rob Butler]

Out of an abundance of caution, I declare that prior to my election I was a non-executive director of Her Majesty’s Prison and Probation Service. Notwithstanding what the hon. Lady has just said, does she accept that there is a real scourge of drugs in our prisons and that we must clamp down on them and not do anything to encourage their use? I entirely agree that rehabilitation is the right way to proceed but, equally, nothing must be done to encourage those who seek to bring drugs into prison, create an illicit economy and make the problem much worse.

[Ms Brown]

I absolutely agree and I am very grateful to the hon. Gentleman, especially with the knowledge that he has, for giving me the opportunity of making myself abundantly clear. Those who bring the trade into prisons, who put at risk the lives and wellbeing of our prison staff and prisoners should feel the full penalty of the law. I have no doubt about that at all.

What I was trying and obviously failing to do was to get us to put ourselves in the mind of the prisoner who is taking this stuff and understand that in many ways it is logical to want to free oneself mentally, even just for a few hours, from some of the stresses that people have to endure when there are in prison. The hon. Member for Aylesbury is absolutely right that the full weight of the law should be felt by those who are peddling this insidious, evil stuff in our prisons and taking advantage of those who are most vulnerable. They are completely and utterly despicable. I do not think I could make myself clearer.

--- Later in debate ---

[Lucy Frazer]

The hon. Member for West Ham has highlighted two matters in her amendment, both of which relate to reporting. I am very grateful for her having raised these very important matters, but I would like to reassure her that the amendment is not necessary, because sufficient procedures are already in place to measure and record what work will be done.

I would like to highlight, as the hon. Lady has, that making sure treatment is available is critical, and the first step is this one: identifying what substances are out there. The second step is identifying those people who we need to help, and the third is to give treatment. I hope that in the points I raised in response to her earlier speech, I have identified the considerable measures that we are taking to support people in their treatment, including the significant sums we are giving to rough sleepers—of course, there is an overlap there with prison leavers—and the RECONNECT service that the NHS links up with those treatments within prison and in the community.

I would like to go through the substance of the amendment. Through proposed new clause 1, the hon. Lady is seeking to expand the current scope of reporting by obligating an assessment of value for money after a year, so I will identify the structures that are already in place. As I said, the key objective is to ensure that people are identified, so that they can get treatments, and the effectiveness of that objective is continually reviewed as part of the national prison drugs strategy, which we published in April last year.

The Department also released an annual assessment, with accompanying statistics, as part of HMPPS’s annual digest. This provides a number of the items that the hon. Lady has enumerated in her amendment, including the number of tests conducted, the number of positive tests, and the number of psychoactive substances found. Furthermore, we believe that the contract for providing the drug testing service is effectively managed and reviewed by operational and commercial teams through regular formal contract meetings. To understand the capabilities of the various testing providers, HMPPS has undertaken extensive market engagement with potential suppliers, and it will do so again during future contract tendering processes.

In relation to the specific points the shadow Minister made about value for money, I can reassure her that the provisions in the Bill would contribute to value for money through drug testing in prisons and ensuring that complete information is routinely gathered relating to the misuse of substances in custody. This, as I said, will enable us to make the right operational responses, as well as ensure that we get the right interventions. I believe that there is scrutiny for drug testing in prisons, supported by existing processes, and we should not rush into legislating on this issue.

I would, of course, be happy to write to the hon. Lady when the annual digest is published—I believe the next one is due in July—to draw her attention to those matters, so that she gets that material as quickly and speedily as possible. Of course, I am always happy to engage with her when she has questions, so that we can resolve any issues that she feels have not been fully dealt with. I ask her to withdraw new clause 1.

10.30 am

In new clause 2, the hon. Lady is asking that the Advisory Council on the Misuse of Drugs make biannual reports to Parliament on substance testing in prisons—that is quite similar to new clause 1. As I have explained to the Committee, the effectiveness of drug testing is continuously reviewed and the contract in which it sits is already scrutinised.

Officials at the Advisory Council on the Misuse of Drugs have advised us that the council is not set up for the type of role proposed in the new clause, which appears to be about reporting on the operations and performance of the substance testing system. The council’s role is to provide independent science advice to the Government. That may involve, for example, synthesising advice based on evidence collected on misuse and societal harms. Its role is not to report on the objectives of specific drug testing programmes. I can reassure the shadow Minister, however, that the ACMD already has a role in making recommendations for action, but more broadly, under its role in the Misuse of Drugs Act 1971. The new clause would broaden those functions beyond their current scope.

I will address a few of the specific points that the hon. Lady made and I hope that I can alleviate some of her concerns. She identified and mentioned the significant investment that we are making in security—the £100 million investment to which I referred earlier when addressing the main clauses. In the course of that significant programme and of ensuring that we have funding from the Treasury for it, we have identified where we think, having done some work, the best value for money is. That is why we are pursuing those measures in the course of our programme.

The hon. Lady talked about the impact of covid on drug testing and the importance of lessons learned. I completely agree with her about the importance of looking at what we have learned in this period, and we are undertaking a broad study on that, with input from a wide range of people, including service users, third parties, and HMPPS itself. We suspended drug testing between April and June because of the social distancing measures and the lockdown within prisons, but under our current national framework prisons can reintroduce testing. Where that is done, prisons must take account of social distancing and cohorting measures. At the moment, it is too early to evaluate the impact of the changes on the drug testing programme, but we will of course be looking at all those issues in due course.

[Rob Butler]

On the point about the impact of covid, will the Minister join me in paying tribute to all the staff in HMPPS—the officers, the staff in prisons, the governors and those at HMPPS head office—for their tremendous effort to minimise and mitigate the effect of covid on the prison estate during the pandemic?