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.

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[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?

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[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.

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[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.