Prisons (Substance Testing) Bill

Explanatory Notes

Commentary on provisions of Bill

Clause 1: Testing prisoners for psychoactive substances and other substances

18. As noted above, the current legislative framework for drugs testing in prison in England and Wales in section 16A of the 1952 Act allows mandatory tests to be carried out for controlled drugs under the Misuse of Drugs Act 1971 and for "specified drugs". If a new drug is identified that is not a controlled drug for the purposes of the MDA 1971, it can be added to the list of "specified drugs" in the Prison Rules by secondary legislation.

19. Permitting specified drugs to be added by secondary legislation to the list of drugs that can be tested for was a response to the rise in the use in prison of psychoactive substances. The change was made by section 16 of the Criminal Justice and Courts Act 2015 at a time when psychoactive substances were not banned or controlled, hence their alternative name of "legal highs". The change was also made because at that time there was no statutory definition of a psychoactive substance. The Psychoactive Substances Act 2016 ("PSA 2016") subsequently introduced a statutory definition of psychoactive substances, as well as criminalising the following activities regarding psychoactive substances: production; supplying or offering to supply; possession with intent to supply; importing or exporting; and possession in a custodial institution.

20. Clause 1 sets out the necessary changes to adopt the generic definition of a psychoactive substance from the PSA 2016 so that in future tests can be carried out for psychoactive substances covered by this definition, without the need to add each individual psychoactive substance by secondary legislation. It is a feature of psychoactive substances that new substances appear regularly with slight alterations to the chemical make-up. The generic definition is adopted by subsection (2) adding "psychoactive substances" into the title of section 16A of the 1952 Act and subsection (3) adding "psychoactive substances" into section 16A(1). Subsection (5) adds the definition of a psychoactive substance to section 16A(3), stating that it has the same meaning as in the PSA 2016.

21. Clause 1 also sets out the necessary changes so that in future tests can be carried out for prescription only and pharmacy medicines. Subsection (3) adds "prescription only medicines" and "pharmacy medicines" into section 16A(1) of the 1952 Act. Subsection (5) adds the definition of "prescription only medicine" and "pharmacy medicine" to section 16A(3). Clause 1(5)(b) makes clear that these terms are defined by reference to regulation 8 of the Human Medicines Regulations 2012.

22. Clause 1(4) also makes provision for anonymised prevalence testing, which can be used to test for "controlled drugs", "medicinal products", "psychoactive substances" and "specified substances". It does this by inserting a new subsection (2A) into section 16A of the 1952 Act. This provision would allow for the anonymised testing for "medicinal products". This is a wider category of substances, which includes both "prescription only medicines" and "pharmacy medicines". Clause 1(5)(b) makes clear that "medicinal product" is defined by reference to regulation 2 of the Human Medicines Regulations 2012.

23. Clause 1 makes further amendments to the existing testing framework arising from the substantive changes to the framework set out in the clause. Clause 1(3)(b) provides that a prisoner can be tested for a "specified substance" and the further change at clause 1(5)(d) makes clear that "specified substance" replaces "specified drug" in the existing framework and means any substance or product specified in Prison Rules for the purposes of section 16A. Clause 1(5)(c) provides a definition of "prisoners’ samples" with respect to the prevalence testing provisions at clause 1(4).

Clause 2: Consequential amendments

24. Clause 2 sets out the consequential amendments following the changes in clause 1. Clause 2(1) amends section 47(3A) of the 1952 Act to make clear that, while Prison Rules can be made to specify any substance for which a prisoner will be required to provide a sample for the purposes of section 16A of the 1952 Act, it is not possible to specify any substance that is: a controlled drug; a pharmacy medicine; a prescription only medicine; or a psychoactive substance because these categories are now already included and defined in section 16A.

25. Clause 2(2) makes provision in case there is any future change in the Human Medicines Regulations 2012 or other subordinate legislation relating to human medicines. In those circumstances, clause 2(2)(a) inserts a new subsection (4) into section 16A of the 1952 Act to provide a regulation making power for the Secretary of State to make such changes as are necessary to either section 16A or section 47 of the 1952 Act. A new subsection (5) is also inserted into section 16A to clarify that "subordinate legislation" has the same meaning as in the Interpretation Act 1978.

26. Clause 2(2)(b) provides that any regulations made under this provision will be subject to the affirmative resolution procedure in Parliament.

27. Clause 2(3) and (4) make several necessary consequential changes to secondary legislation. Clause 2(3) removes the definition of "specified drug" that currently appears in several places in the Prison Rules 1999, namely Rule 2 (interpretation), Rule 50 (compulsory testing for controlled or specified drugs), Rule 51(9) and (24) (offences against discipline) and Rule 52 (defences to Rule 51(9)). Clause 2(4) makes equivalent consequential changes to the Young Offender Institution Rules 2000. These changes are necessary because all the chemical compounds that are currently on the list of specified drugs for which prisoners can be tested in Rule 2 of the Prison Rules 1999 are now covered by the generic definition of psychoactive substance. Clause 2(5) revokes the two statutory instruments that added those compounds to the definition of specified drug.

Clause 3: Final provisions

28. This clause confirms the short title of the Bill and makes provision for its coming into force. Clause 3(3) provides that the Bill extends to England and Wales only.


Prepared 28th June 2018