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).