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6.52 pm

Mr David Winnick (Walsall North) (Lab): At the heart of this debate is the concern that the confidentiality between Members and our constituents should not be undermined. That is the nub of this debate and why this issue is so crucial.

In the past 10 years, there have been two instances that, strictly, did not come within the Wilson doctrine. My right hon. Friend the Member for Tooting (Sadiq Khan) found that a conversation he had with a prisoner in prison had been recorded secretly by the authorities. That was totally unacceptable. Understandably, concern was expressed not only by my right hon. Friend, but by many other Members of this House. The other occasion, which the right hon. Member for Haltemprice and Howden (Mr Davis) mentioned, was when the right hon. Member for Ashford (Damian Green) had his Commons and constituency office searched by the police. I want to make it clear that that was not seen at the time as any sort of party issue. The right hon. Member for Ashford is not a member of my party, but I was among those who said that what had occurred was totally unacceptable. The police had no warrant and should not have been allowed to search his Commons and constituency office: just imagine if that were to happen all over again. This is indeed a very important issue.

Ms Margaret Ritchie (South Down) (SDLP): Does my hon. Friend agree that it is particularly important for Northern Ireland MPs to be able to ensure the protection of all our constituents whenever they give us certain information that requires representation or investigation? That is particularly important in a divided society.

Mr Winnick: I agree entirely.

What was announced by the then Prime Minister in 1966 has of course been confirmed by successive Prime Ministers, including to me when I put a question to Mr Blair shortly after the Labour Government were elected in 1997. To argue, as some have done—the Home Secretary has more or less in some ways given the impression that this is her opinion—that we, as Members of Parliament, want to put ourselves above the law, is in effect to say that the protection we have had for centuries in this House to be able to speak without the threat of legal challenge is wrong. The occupant of the Chair always warns us that we should be careful what we say, especially if we make comments we would not make outside the House. That is an absolute protection for this House: just imagine if it did not exist and we could not say, without legal challenge, what is most important and what could not be said outside. The same applies to what we are debating today: confidentiality between Members and their constituents and others—journalists, whistle- blowers and so on—and their ability to speak to their Member of Parliament on the telephone, or via other forms of communication, safe in the knowledge that their conversation is not being intercepted by the authorities.

The nub of the issue is not special protection or privileges for ourselves. Of course we cannot be above the law. Of course we cannot say to our constituents, “We are special people and we want rights that you do not have.” What we are emphasising—it cannot be emphasised too much—is the right of those who want to contact their Member of Parliament or another

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Member of Parliament and speak along the lines I have already indicated. That is what this debate is really all about.

I congratulate all those who took a case to the tribunal: the hon. Member for Brighton, Pavilion (Caroline Lucas), the right hon. Member for Haltemprice and Howden and even Mr Galloway—I say that with some reluctance, but I give credit to even such extreme cases. Had the case not gone to the tribunal, we would still not know whether the Wilson doctrine was being applied. It is not appropriate for the tribunal, or any other tribunal for that matter, to take over responsibility for what is essentially a political matter.

I am pleased this emergency debate has taken place. I hope the proposed legislation mentioned by those on both Front Benches will be introduced. In essence, the Wilson doctrine remains. It is quite true, of course, that since 1966 there has been a total revolution in communications. It is a different world, but that does not alter the basic position between Members of Parliament and those who wish to contact them over various matters.

It may be said that the great danger now is terrorism. No one disputes that—the country does face an acute terrorist danger—but in 1966, in a very different political climate, it was the height of the cold war. There was concern on many occasions about spies, and even the possibility of Members of Parliament being engaged with foreign intelligence agencies. What I am saying, since I was there at the time, is that the suspicion was of a different enemy, but suspicion remains. Indeed, it would be difficult to think of a time when there were not enemies who wanted to cause harm to this country, but that does not alter the fact that what Harold Wilson said, under pressure arising from the events in 1966 and the seamen’s strike, was right.

For all the reasons stated, the doctrine should be kept and it would be an extreme disservice to Parliament if the Wilson doctrine was undermined. It is an essential protection, not—I repeat—for MPs, but for those who wish to contact us, constituents or otherwise. That safeguard and security, which I hope they continue to have, is crucial if they are to contact us without fear of having their conversations monitored by the security authorities or anyone else.

7 pm

Mr Peter Bone (Wellingborough) (Con): It is a great privilege to follow the hon. Member for Walsall North (Mr Winnick). I do not always agree with him, but today I absolutely did.

Going back to 1966 and Prime Minister Wilson, one of the concerns was that the Prime Minister might be having his telephone conversations intercepted by the security forces. Fast forward to today, and let us say—I am not saying this has happened—we had a Leader of the Opposition who would not press the nuclear button, who was perhaps a member of CND, and whom someone deep in the bowels of MI5 or MI6 thought should not have certain information or needed to be listened into. It is not that far-fetched or impossible.

This is one of the most important debates we have had for a long time, and I am grateful to you, Mr Speaker, for having granted the SO24 application, but I am disappointed more Members are not in the Chamber, because it goes right to the heart of why we are

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parliamentarians. Yes, we have freedom of speech in the Chamber, but we have to talk to our constituents and other important people, including colleagues, knowing that our conversations are protected. We do not want the Government listening in. Our job is to scrutinise the Government, and if they had listened in to some of my conversations, they would rightly be concerned. No doubt, they could use what I said against me, but that is not the point. We are here to scrutinise the Government, and we need this protection.

If the Wilson doctrine is still in force—I am talking only about telephone calls—and no MPs’ telephone conversations have been intercepted, why has the Home Secretary, or any other Home Secretary who has been challenged about this, not said that no Member has had their phone calls intercepted? The obvious thing to do would be to say, “The doctrine is in force, so no one has had their phone calls intercepted.” I am waiting for my right hon. Friend to leap to her feet and tell me that no MP has had their phone calls intercepted. She does not get to her feet. I suggest that indicates it has happened. I do not think it has necessarily happened under this Government, but I think it has happened over the years.

How could that have happened and the Wilson doctrine still be in force? The Home Secretary, very helpfully, directed us to the answer. She said that the shadow Leader of the House had not read out Prime Minister Wilson’s full statement. He said:

“But if there was any development of a kind which required a change of policy, I would, at such a moment as seemed compatible with the security of the country, on my own initiative make a statement in the House about it.”

The assumption is, therefore, that had it happened, a Prime Minister would have come to the House and said so, but of course there is a get-out clause: to decide it is not in the national interest. May I suggest that that is exactly what has happened over the years? Members’ telephone calls have been intercepted, and the Wilson doctrine is still in force, because every Prime Minister has decided it is not the right moment to come to the House to tell us. Given that she has not interrupted me to say I am wrong, the only conclusion that reasonable people can draw is that Members have had their telephone calls intercepted not just now but over the years. I reckon it has been widespread. Had it not happened, it would have been denied.

Lady Hermon: When the IRA and Sinn Fein were inextricably linked and the IRA was murdering, bombing and creating mayhem throughout the country, Sinn Fein Members believed their telephone calls to be intercepted—and quite right, too, I would say. Does he approve of that?

Mr Bone: The hon. Lady is quite right, but I specifically asked a parliamentary question about whether any Member who had taken the Oath of office had had their phone calls intercepted. Of course, I got a non-reply, because—I believe—it has happened.

President Nixon would have been pleased with the responses to the 27 written questions on this matter that have received answers. There are so many non-denial denials. Only a few days ago, I asked the Home Secretary again about this issue, and again we got an absolute

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non-denial. In that case, she said she was not allowed to give information about individual intercepts. I was not asking about an individual intercept; I was asking how many there had been. Why on earth is it wrong for this mother of Parliaments to know how many MPs have had their telephone calls intercepted in each year? They do not have to be identified; we just want to know how many.

This could be a huge cover-up that could ruin people’s careers. Home Secretary, you cannot keep dancing on the head of a pin. We need to know the truth. This is so vital. If you have not authorised the interception of any MPs’ telephone calls, why not leap to your feet now and tell me? What conclusion—

Mr Speaker: Order. The hon. Gentleman is normally the most fastidious adherent of parliamentary etiquette, but for the avoidance of doubt, he was not for one moment raising the prospect that I would have authorised any such interception. I would not dream of doing any such thing. The word “you”, which applies to the Chair, could usefully be replaced with the third person.

Mr Bone: Yes, indeed, Mr Speaker. Of course, I was asking if the Home Secretary wanted to leap to her feet. It was probably because she misunderstood me that she did not leap to her feet, so let me give her the opportunity again. If she has not authorised any such telephone intercepts, will she tell the House now? Okay, I think that that answers the question.

We now need to move on. I agree that we need to put the Wilson doctrine—

Mr Davis: Had my hon. Friend not confined the question to telephone calls, it might have been that the Home Secretary did not know the answer. For example, the Tempora programme, widely reported in The Guardian and other newspapers, involves the harvesting of vast quantities of data travelling out through Bude. These data are kept for 30 days and made accessible to the United States, among others. My right hon. Friend the Member for Chichester (Mr Tyrie) ran for several years a campaign on rendition that might have made him of interest to the United States. Liberal party Members ran campaigns on the Iraq war that would have made them of interest to the US. It might well be that the Wilson doctrine is being broken by proxy, as it were, simply by the behaviour of our agencies, without explicit approval being granted in each case.

Mr Bone: My right hon. Friend makes a powerful point, but that was why I was limiting my questions to telephone conversations, which the Home Secretary would have known about and clearly does know about, but which she does not want to tell the House about.

Chris Bryant: For the avoidance of doubt, I want to make it absolutely clear that my personal objection is not that MPs’ phones might have been tapped—there might be circumstances in which that is perfectly legitimate in order for Governments to defend national security or prevent serious criminality—but the continued pretence and repeated assertion that their phones have not been tapped.

Mr Bone: I almost agree with the shadow Leader of the House. What I am saying is that I have no objection to the tapping of MPs’ telephones for national security,

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alongside all the safeguards we have mentioned, but we should be told at least once a year how many times that has occurred. We should know not who is involved, but how often it has occurred so that the House knows what is going on. That, however, is the information that we cannot get, which is why we have to put the Wilson doctrine into law. It expands, of course, into e-mails and all the other forms of communication that are now in place.

Let us have the debate. The shadow Leader of the House seemed to take an assurance from the Home Secretary, but I was not sure whether I was listening to Richard Nixon again. It was not clear to me whether legislation will definitely be brought forward, or if that would be only considered. It is essential that we get clarity about that.

I was very attracted to what my hon. Friend the Member for Corby (Tom Pursglove) said when he talked about a treble lock. If an MP’s phone is to be tapped or another form of their communication is to be intercepted, yes, that should be authorised by the Home Secretary and by a judge, but I think it should also be authorised by whoever is sitting in your Chair, Mr Speaker, as the Speaker should also have a role in this. That triple lock would make the process more difficult because if any of those parties disagreed, the proposed intervention would not happen. We need to debate such issues in detail. We cannot pretend that MPs are not having their communications intercepted when clearly, by the omission of a response from the Government, that is exactly what is happening.

7.11 pm

Gavin Robinson (Belfast East) (DUP): At this stage of the debate, I am pleasantly surprised that the contributions have not been as piously pompous as I thought they might be. It is appropriate for MPs of all parties to recognise that this should not be, and must not be, about us. Protections for constituents must lie at the heart of the intended purpose of the Wilson doctrine. If anything is laudable to pursue, it is the protection of those who most need our help.

I have listened to many of the contributions. The hon. Member for Wellingborough (Mr Bone) asked the hon. Member for Rhondda (Chris Bryant) whether the breach of the Wilson doctrine applies to this Government, or to previous Governments over successive decades. We know of many cases of such breaches occurring.

The former Member for Belfast West, Mr Gerry Adams, will be known to many in the House. His car was bugged by MI5, the bugs were detected and it was admitted—not in the House, but in newsprint throughout the UK, by the then Secretary of State for Northern Ireland, Mo Mowlam—not only that the bugging had occurred, but that it had been appropriate. There was no hue and cry about a breach of the Wilson doctrine. It is appropriate for Members to recognise that in situations involving terrorism, steps will be necessary to defend this country’s national security. That was only one example.

Nobody thus far has touched on not just communication between someone of interest to our security services and a Member of Parliament, but communication from Members of Parliament themselves being subject to stringent scrutiny. Reference was made to the Leader of Her Majesty’s Loyal Opposition. Many Members have

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described with a straight face his position as a threat to national security. If that is the case and it is earnestly believed, that individual should, of course, be subject to appropriate scrutiny in the best interests of this nation and our society.

There are three plaques at the rear of this Chamber, and last week we had a memorial service for Mr Gow. Threats exist for Members of Parliament, and particularly in the context of Northern Ireland, I suspect that there have been many more breaches than in respect of the former Member for Belfast West.

There is a clear desire that should an MP have his communications intercepted, there must be structures in place to make sure that such interception is appropriate and proportionate. The right hon. Member for Haltemprice and Howden (Mr Davis) cited many examples of communications between MPs and their constituents in prison, and we have heard about whistleblowers from the Home Office and the police force. What I did not hear was a fair reflection of what that right hon. Gentleman believed were the consequences regarding the interception of such communication. We should not get caught up, especially with the catch-all methods involving e-mail, in whether a message has been intercepted. Rather, the question is whether it is analysed, and whether action is taken as a consequence of that analysis. Those are the more appropriate considerations for Members, so that will be the important issue when we scrutinise forthcoming legislation.

A briefing paper by Liberty for this debate says that RIPA was silent on the Wilson doctrine, so we were encouraged to believe that the doctrine was enshrined. If I asked a question and the response was silence, I am not sure that I would be satisfied that such a response suited my purposes. I do not think that Members should have had an over-high expectation that the Wilson doctrine was still as it was outlined in 1966. The experiences from Northern Ireland that I cited eminently suggest that that is not the case. The question that this Parliament must decide, which is why the debate is important, is where we go from here, so Members’ contributions in the Chamber will be crucial. It is important that the tone and nature of the debate recognise that protections must be in place not for our sakes, but for those of our constituents.

Ms Ritchie: Does the hon. Gentleman agree that there is an even greater need for the protection of constituents in our context of Northern Ireland where a dirty war operated between paramilitarism, probably, and members of the armed forces by detailing information that could have led, or has been alleged to have led, to people’s deaths?

Gavin Robinson: I thank the hon. Lady, but the Northern Ireland context is likely to have led to more breaches of the Wilson doctrine—and rightly so. In the context of an ongoing terrorism campaign, it is important that our Government and our national security services are there to protect us from people’s—whether they be terrorists or MPs, or terrorists and MPs—nefarious actions.

Ms Ritchie: I thank the hon. Gentleman for being so gracious with his time, but does he not agree that sometimes people’s lives—the ordinary lives of decent

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constituents—were placed in tremendous peril as a result of such interception involving paramilitaries and others?

Gavin Robinson: I do not want to place too much trust in the security services, but I do trust that when they act, they do so in our best interests, and in the interests of the safety and security of this nation—any of its four regions. That is not to say that my trust could not be misplaced, and it is appropriate to place an onus on the safeguards, how they operate and, most fundamentally, how they will protect us.

Finally, I want to touch on the counter-extremism strategy that the Home Secretary published today. Its goals are laudable, but this constitutes yet another example of how Northern Ireland is excluded from the counter-extremism strategy. Given the extremists who are operating in Northern Ireland, and given the way in which we have had both parliamentarians and constituents operating in such an extreme and destabilising way there, it is ludicrous that Northern Ireland should be specifically excluded from that strategy. Our experience tells us that we have a contribution to make to this evening’s discussion, but it also tells us that if any part of the United Kingdom requires protections from extremism, Northern Ireland should feature.

7.20 pm

Mr Alistair Carmichael (Orkney and Shetland) (LD): I congratulate the hon. Member for Rhondda (Chris Bryant) on his initiative in applying for the debate, and I congratulate you, Mr Speaker, on granting it. It is a timely and necessary debate, and it has been a good debate so far. If anything about it disappoints me, it is the fact that the House has been rather less full than I hoped. I suspect that if at the heart of the debate were a more specific suggestion that Members’ communications had been intercepted, the Benches would have overflowed. I am afraid that this really is not good enough. If I may borrow a phrase from another part of the political lexicon, we need to mend the roof while the sun is shining. It is at this moment, when we are not under the immediate pressure of allegations of that sort, that we should be considering this matter in the context of the broadest possible principles.

I welcome the Home Secretary’s clarification that she considers the Wilson doctrine to be a live doctrine which continues to operate, but I echo the concern expressed by others this evening about just how meaningful it is in 2015. As I said to the Home Secretary in my intervention, we now have a very different constitutional framework, a range of very different ways in which communication is undertaken, and a range of different matters in which Members of Parliament now routinely intervene, many of which had not even been envisaged in 1966.

I am a great fan of the flexibility of the British constitution when, through the operation of doctrines and conventions, it is capable of responding in a way that has common sense at its heart. Sometimes, however, those doctrines and conventions become overused, and, by virtue of the introduction of other legislative frameworks, of which RIPA is one of the most obvious examples, reach a point at which they no longer serve the purpose

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for which they were originally intended. That, I suggest, is the point that has now been reached.

A remarkable aspect of the debate is the existence of broad agreement. From the speech of the right hon. and learned Member for Rushcliffe (Mr Clarke) onwards, it has been clear that if we undertake this in the way in which we, as parliamentarians, ought to undertake it—openly, and accepting that we all act in good faith—it should be possible to construct a Wilson doctrine for the 21st century, which will, I fear, now have to be enshrined in statute. I hope that a draft regulation of interception Bill, at least, will give us an opportunity to consider how that might be done.

I think it is a matter of broad consensus—I have heard no one suggest otherwise tonight—that the people who stand to benefit from the operation of the doctrine are not Members of this House or, indeed, of the other place, but our constituents. That, I think, is a principle that has not changed since 1966, and one that should be at the heart of any statutory codification. There has also been universal agreement on the principle that Members of Parliament should not be above the law. However, when it comes to people not being above the law, that should of course include the Home Secretary, and anyone else who would be required to sign a warrant in respect of matters such as this. For that reason, I suggest that a degree of judicial oversight of some sort should be incorporated in our new measures.

Dr Murrison: I am listening to what the right hon. Gentleman has to say with a great deal of interest, and I agree with much of it. Does he agree with me, however, that it is slightly important for us to take the public along with us? They will see—and the press has been reflecting it recently—that this simply means parliamentarians putting themselves above the law. Can he define precisely what concerns him about MPs’ relationship with their constituents, and, perhaps, contrast it with what applies to those in other professions, such as healthcare workers, lawyers and journalists? Perhaps, as he comes from Scotland, I can press him further, and ask him whether he regards this as an argument for first past the post, given that we would have to examine the relationships of list MSPs compared with constituency MSPs. Is he concerned primarily about the relationship between a constituent and a constituency MSP or MP?

Mr Carmichael: Let me answer the hon. Gentleman’s second question first, while I can still remember it. I must tell him that list MSPs have constituents as well, but over a much wider range of areas. As for the question of the description, it is a little like an elephant: it is difficult to describe, but you know it when you see it. That is the sort of work that needs to be done, and I believe that it can best be done on a cross-party basis. While we have the time and the space, we should be constructing a new system which is capable of maintaining and commanding the confidence of people across the House, whichever party happens to be on the Treasury Bench at any given moment.

My intervention on the Home Secretary’s speech was prompted by her interesting use of the term “the spirit of the Wilson doctrine” in relation to parliamentarians who are not here or in the other place, but in the devolved legislatures: the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly. I think that

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there is a fairly simple principle at stake, namely that when we devolve power, we should also devolve the privilege that goes with power. The hon. Member for South West Wiltshire (Dr Murrison) invited me to contrast our position with that of other professionals, such as lawyers, doctors and journalists. I would not contrast it, but I would say that, in many ways, we have the same reasons for such privilege. I say that as a former solicitor. The hon. Gentleman is a medical practitioner, and he understands that there are good and compelling reasons for the extension of privilege to those professions in the way in which it was extended to what is done in the House of Commons.

Dr Murrison: Does the right hon. Gentleman agree with both the Home Secretary and my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that in the upcoming legislation it would be better for the professions that deal with people and their issues to be dealt with en bloc, so that the public do not see politicians as being in a particular group on their own, and are therefore more likely to understand the need for certain exchanges to be privileged?

Mr Carmichael: I caution the hon. Gentleman, without necessarily disagreeing with him, that we should not allow the best to be the enemy of the good. Ideally, that is the point that we should reach, but if we wait until the standing of the House of Commons, and that of politics in general, is so high that we will not be subject to public criticism for doing what remains the right thing to do, I am afraid that we shall end up waiting for a very long time.

I mentioned the devolved legislatures because it is apparent from reports in the Daily Record that there has been a change of policy. According to the Daily Record, before March 2015 the guidelines given to the security services stated:

“As a matter of policy, GCHQ applies the principles of the Wilson doctrine to Members of the House of Commons, Members of the House of Lords, UK MEPs, and members of the Scottish, Welsh and Northern Irish assemblies”—

however inaccurately they may have been named there. In June, however, it was reported:

“The doctrine does not apply to…the interception of communications of Members of the European Parliament or devolved assemblies.”

If that is the correct statement of the advice, and I have not seen it challenged anywhere, clearly there has been a change. We are entitled to ask why that change was made and in principle why Members of the Scottish Parliament or Welsh or Northern Ireland Assemblies should be treated any differently from Members of this House. The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the point that they have a democratic mandate and duties of democratic accountability in the same way we do. On that basis, there should be no reason for them being treated differently.

As I said at the start, the time for the ability to regulate these matters through adoption or convention is well and truly behind us. There is a clear need for a measure of judicial oversight. In that way, we can ensure confidence, and it is in the interests of the Treasury Bench that the decisions taken command confidence in this House, in other places and across the country with the public as a whole.

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The right hon. Member for Haltemprice and Howden (Mr Davis) said that it would be suggested that if we have nothing to hide, we should have nothing to fear. The question is not about what we have to hide or fear, it is about our constituents.

7.31 pm

Caroline Lucas (Brighton, Pavilion) (Green): I start by paying tribute to the many Members who have raised the issue of the Wilson doctrine over many years. There are many of them and it would be invidious to leave any out if I were to try to name them all, but I pay tribute in particular to the indefatigability of the right hon. Member for Haltemprice and Howden (Mr Davis), the hon. Members for Walsall North (Mr Winnick) and for Wellingborough (Mr Bone) and, of course, the hon. Member for Rhondda (Chris Bryant), whom I congratulate on securing this important emergency debate. There has been a strong sense of common cause here. Contributions from all parts of the House have been very much in accord on the kind of principle we want to see in the future, the fact that we are not putting ourselves above the law, and the fact that this is about securing the confidentiality of our constituents—whistleblowers and so on—and is not about making a special case for MPs per se.

The Cabinet Office response to the Investigatory Powers Tribunal ruling was that MPs’ communications were not “improperly intercepted” and that

“all activity has been within the law.”

That is true, but I suggest that it misses the point, which is that the activity that MPs have been repeatedly told was not possible because of the Wilson doctrine has in fact been taking place and constitutes a grave breach of our constituents’ privacy. MPs have been misled about the level of protection afforded by the Wilson doctrine and we need legislation that provides a proper framework for future decisions.

The Home Office has responded to the IPT judgment by reiterating that under RIPA the security agencies must apply for a section 8(1) warrant if they want to target a parliamentarian. This is also true, but it also misses the point. GCHQ and MI5 routinely undertake the generic and indiscriminate trawling of everyone’s data to garner what is called metadata. The Wilson doctrine does not prevent communication between MPs and their constituents, whistleblowers, campaigners or journalists from being captured in this kind of trawl. All it does is stop MPs’ names, for example, being used at the next stage of the process when the security services search that metadata. So they could not search for my name, or indeed the name of any other MP, but that does not prevent them from looking at communications highlighted by a search on another term that could still lead them in exactly the direction they wish to go.

As we now know, while the secret services have guidelines intended to enact the spirit of the Wilson doctrine when they make decisions about accessing analysed data gathered in this way, this is not legally enforceable. The IPT judgment refers to previously unpublished guidance issued to the security and intelligence services on the doctrine. The guidance states that, when considering a warrant application to which the Wilson doctrine would apply, the relevant Secretary of State must consult the Prime Minister, via the Cabinet Secretary. The guidance states,

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and the IPT agreed, that the doctrine only applies to the direct interception of parliamentarians’ communications under section 8(1) of RIPA, and not indirect or incidental interception under section 8(4) of RIPA. Therefore the guidance as quoted does not provide for a procedure to be followed in the event that an MP’s details came up in relation to a targeted search on something else.

Parliamentarians’ communications are not referenced in RIPA and the IPT judgment seems to assume that this means that the Act therefore overrides the Wilson doctrine. I was not a Member of the Parliament when RIPA was passed but many colleagues here today were and perhaps they, understandably, did not seek to amend the Act to refer to their communications because they believed they were already exempted thanks to Wilson.

The judgment casts serious doubt over repeated assurances from successive Governments that MPs are not being subjected to state surveillance or interception. At best, it appears that the Prime Minister, as recently as 11 September 2015, was unaware of the exact status of the doctrine and ignorant of its application. At worst, he may have been deliberately ambiguous in order to lull MPs into a false sense of security. In this I echo the words of the Government’s own lawyer, who described previous ministerial statements on the Wilson doctrine as

“ambiguity at best whether deliberate or otherwise”.

What is unambiguous is that any change in the doctrine’s scope should have been notified to Parliament, in terms, by the Prime Minister. If the Executive have instead unilaterally rescinded the doctrine without notifying Parliament, that represents what Liberty calls

“a significant, constitutional breach of trust between the Executive and sovereign Parliament to which it must answer”.

Consistent with the absence of any reference to parliamentarians’ communications in RIPA, the interception of communications code of practice, published in 2002, approved by Parliament and in force until earlier this year, is similarly silent on the subject. But its replacement, the draft interception of communications code of practice, published in February 2015, does refer to the potential for parliamentarians’ communications to be intercepted. It has not yet been put before or approved by Parliament, but this change of tack suggests a conscious change of policy and, again, it is unacceptable that MPs have not been properly informed—and, indeed, have actually been issued with ongoing reassurances that the Wilson doctrine protects them. The one exception to this was a comment made by the Home Secretary during the debate on the data retention and investigatory powers last summer, which other Members have already referenced, in which she said:

“Obviously, the Wilson doctrine applies to parliamentarians. It does not absolutely exclude the use of these powers against parliamentarians, but it sets certain requirements for those powers to be used in relation to a parliamentarian. It is not the case that parliamentarians are excluded and nobody else in the country is, but there is a certain set of rules and protocols that have to be met if there is a requirement to use any of these powers against a parliamentarian.—[Official Report, 15 July 2014; Vol. 584, c. 713.]

Again, as other Members have said, if there has been a material change, as it appears there has been, it is incumbent on the Home Secretary or the Prime Minister to proactively advise Parliament and detail the implications

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for our constituents and our wider work. This is not about asking for special privileges for MPs; on the contrary.

I have also been campaigning for nobody to be subjected to mass surveillance. As Amnesty International puts it helpfully: surveillance of communications in any form—from the initial interception itself to access, and further use, whether of content or metadata—is an interference with a range of human rights. Those include the rights to privacy and freedom of expression.

To avoid that interference amounting to an actual violation of rights, it must be lawful, necessary and proportionate. UK law and practice around communications surveillance currently fails not only the lawfulness test, but the necessity and proportionality requirements for non-abusive interference with basic rights. In this instance, it is about members of the public having confidence that their communications with MPs are not being spied upon, and that they can expect representation without their privacy being compromised. It is about trust and about our ability to undertake legitimate parliamentary duties without the security services monitoring us.

I would suggest, as Amnesty has done, that the logical conclusion the Government should be reaching in the wake of the IPT’s judgment is that, in order for surveillance to be both human rights compliant and in line with the Wilson doctrine, those authorising warrants—who should be independent entities—should ensure it is properly targeted at where there is a reasonable suspicion. In other words, there should be no indiscriminate bulk surveillance of anyone’s communications data.

I, too, agree that MPs should not be above the law. If there are grounds to suspect an MP or citizen of any wrongdoing, of course it should be permissible to target their communications for surveillance and interception, provided due process is followed. That is proportionate and appropriate. But it is also quantifiably different from the kind of bulk interceptions to which citizens are routinely being subjected and from which MPs were given the impression that they were exempt.

I want to thank you, Mr Speaker, for your ongoing willingness to facilitate transparency and accountability in respect of the Wilson doctrine. Last week, in the wake of the IPT judgment on the case brought by myself and Baroness Jenny Jones, I was given the green light to ask two written parliamentary questions that would not have been permissible 24 hours earlier—namely, to ask the Prime Minister what information he holds about MPs having had their communications surveilled and further, to ask him whether the Wilson doctrine has been consistently applied to my communications or whether those communications have also been surveilled. I urge other MPs to ask those same questions, as our constituents and other correspondents have a right to know whether they have been spied on. We also need answers to the following questions. Did the Government realise that the Wilson doctrine was not legally enforceable in advance of this ruling? Will the Prime Minister now come clean about how many MPs and their constituents have been surveilled?

The impending publication of the investigatory powers Bill will offer a key opportunity to ensure that the protections supposedly afforded by the Wilson doctrine are indeed properly enshrined in law. I am pleased that the Home Secretary has indicated that she will look at

19 Oct 2015 : Column 727

including a principle of that kind in the Bill, but I would be grateful if she could be even clearer when she speaks again in the debate and if she confirmed—

Mr Speaker: Order. May I gently say to the hon. Lady that I am sure her error is an inadvertent one? I do not think that the Home Secretary intends to speak again in the debate tonight, although the shadow Leader of the House might do so if there is time. Of course the Home Secretary is perfectly welcome to do so if there is time, but I do not think she intends to do so. However, I will leave the hon. Member for Brighton, Pavilion (Caroline Lucas) to her own devices.

Caroline Lucas: I am grateful for that clarification, Mr Speaker. I will therefore simply suggest that it would be helpful if the Home Secretary were to intervene on me to clarify that she will definitely include in that Bill the kind of principle that many of us have been describing tonight. I appreciate that she is still thinking about whether this should involve independent judicial approval, as I would suggest, a triple lock or some other mechanism. We would, however, like to hear a firm indication, as a result of this debate, that this issue will be properly addressed and that the hole that has been left as a result of the Wilson doctrine not being properly enforced will be filled by a measure in the new legislation.

All the Members who have spoken in the debate have agreed that this kind of legislation should extend to the devolved legislatures and Assemblies, and to the European Parliament. We do not yet live in a surveillance state, and MPs have a right to expect that their communications, and those of the individuals they have been democratically elected to represent, should not be routinely surveilled or intercepted.

7.42 pm

Martin John Docherty (West Dunbartonshire) (SNP): I am grateful to the hon. Member for Rhondda (Chris Bryant) for bringing this debate to the Floor of the House. Like many Members, I am disappointed that more Members have not chosen to join us, although I am delighted to see that many Scottish National party Members have chosen to do so.

This is a critical issue not only for all Members of this place but for those in all layers of Government, including Members of our Parliament in Edinburgh and of the Assemblies in Wales and Northern Ireland. It is also critical for members of other democratically elected mandates in the Union, especially Members of the European Parliament. I note that the Member who mentioned Members of the Scottish Parliament is no longer here, but I remind those who have sought to remind us of the differing mandates in Scotland, that there are also differing mandates for Members of the European Parliament who are elected on the regional system. It was suggested that we should include the entire nation of Scotland, which was a ridiculous proposition.

Like most dogma, this doctrine seems neither sacrosanct nor enforceable, and if truth be told, the will of the House has never been sought in this matter. As in so many matters, the House has been ill-informed on the limits of the Wilson doctrine. This might be my own personal cynicism, but I find that rather naive. We are now debating this for the first time and calling for

19 Oct 2015 : Column 728

legislation for the first time since 1966. The hon. Member for Brighton, Pavilion (Caroline Lucas) had to physically go to court in order to bring the matter to the Floor of the House. I congratulate her on that.

The purpose of the workings of the Executive in a liberal democracy must be to maintain the defence of the separation of the Executive from this legislative body, be that in this House, in our Parliament in Edinburgh or in the devolved Assembles of Wales and Northern Ireland. The pronouncements of the late right hon. Member for Huyton, Harold Wilson, bound neither future Prime Ministers nor, it would seem, Home Secretaries. Instead, the doctrine is the statement of a belief and faith in what is usually a fairly small issue. In this instance, we are talking only about the telephone conversations of Members of this House, and nothing else. It is the perhaps naive collective belief of Members here and beyond that our representative role as constituency MPs should not be undermined by a range of intelligence agencies not limited to MI5, and that it has not been so undermined since that near ex cathedra statement of the Prime Minister in 1966.

If that belief and trust have been broken—the debate so far seems to suggest that they have been—it is the duty of the Government and perhaps of the Home Secretary of the day, without prompt and with due diligence, to seek a hasty remedy by bringing legislation before the House. The Home Secretary suggested earlier that there could be elements of the investigatory powers Bill that would find favour across the House, and I welcome that.

None the less, I ask the Government to publish with haste the details of how many Members have been investigated in a year. The hon. Member for Wellingborough (Mr Bone) also asked that question. I would perhaps go further and ask how many of those Members have been found wanting in their communications. Can we be told how many were found to pose a risk to the security of the country as a result of the examination of their telephone calls, emails and other communications for security purposes by all elements of the security services, so as to defend the reputation of this House and the need of its Members to be able to hold the Executive to account without hindrance?

This is also an issue for our Parliament in Edinburgh and the other devolved Assemblies. That was particularly the case for our colleagues in the Scottish Parliament during the independence referendum, critically in relation to the communications of the Scottish Cabinet—[Interruption.] I can hear tutting, but this is an issue that many people in the United Kingdom will find important. Let us be in no doubt that all communities in Scotland would find such a situation an outrage and an affront to the sovereign will of the Scottish people and the independence of their Parliament in devolved matters.

Not since the publication of the encyclical “Humanae Vitae” has a doctrine been so flagrantly ignored. The Wilson doctrine has not sought to propagate the population, but its principles have been unfulfilled and found wanting. The doctrine has been found wanting for some years, but never more so than on 15 July 2014 when the Home Secretary, in response to the now deputy Leader of the Opposition, the hon. Member for West Bromwich East (Mr Watson), stated:

“Obviously, the Wilson doctrine applies to parliamentarians. It does not absolutely exclude the use of these powers against

19 Oct 2015 : Column 729

parliamentarians, but it sets certain requirements for those powers to be used in relation to a parliamentarian. It is not the case that parliamentarians are excluded and nobody else in the country is, but there is a certain set of rules and protocols that have to be met if there is a requirement to use any of these powers against a parliamentarian”.—[

Official Report

, 15 July 2014; Vol. 584, c. 713.]

As with most doctrines, people seem to be making this one up as they go along.

It would seem that the very nature of our constitutional framework leaves this House, this Parliament and its elected Members at the whim of the unelected and the unaccountable. It is a constitutional fudge that affords the Executive the opportunity to undermine the role and independence of this House and all its elected Members. I am not pointing a finger at the present Government; this could apply to any Government since the 1960s, or indeed earlier. I hope that when we debate the investigatory powers Bill, the Government will at least offer to support any legitimate defence of our liberty as parliamentarians. That applies to the liberty of those of us in this House, but also to those in our Parliament in Scotland and in the Assemblies of Wales and Northern Ireland, as well as to those who represent this country in the European Parliament.

7.49 pm

Chris Bryant: I promise you, Mr Speaker, and the Home Secretary, who is already bored by my comments, that I will not speak for long. I am a former curate in the Church of England, so I am accustomed to doctrine being a rather loose concept, but the 38 articles have nothing on the Wilson doctrine. [Interruption.] They were often referred to as the 38 articles, because even though they had to swear allegiance to the 39 articles very few clergy in the Church of England believed in all 39 and clergy often used to leave one of the buttons on their cassock undone just to show that they did not agree with one of the 39 articles. Broadly speaking, that is what the Government have done since 1966; they have been wearing a cassock called the Wilson doctrine but leaving several of the buttons undone.

Excellent contributions have been made in the debate by Scottish National party Members, by the Green party, by colleagues from Northern Ireland, by my fellow Labour Members and by Government Members, but I have sometimes felt as if I have been in an episode of “Through the Looking-Glass” because words have been used in a way that defies their own meaning. It is a bit like when Humpty Dumpty said:

“When I use a word…it means just what I choose it to mean—neither more nor less.”

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The truth is that there has been a change; Wilson said Members phones’ would not be tapped. I think we know from this debate that Members’ phones have been tapped, yet successive Prime Ministers and Home Secretaries have sworn blind to this House—they have made written statements and said it time and again in this House—that the Wilson doctrine is fully in place. The truth of the matter is that it is not. I have no objection to the fact that Ministers will, on occasion, have allowed the interception of Members’ communications to have happened, if that is in the interest of national security—no Member of Parliament should be above the law, as everybody has specified—but we should just own up to that fact. If the doctrine is dead, it should be consigned to that place to which all previous doctrines have disappeared when they have been surrendered—to limbo, which itself is a doctrine now surrendered by the Roman Catholic Church.

I say to the Government that I hope that as a result of this debate we can be straightforward in what we say to the public. First and foremost, we should not rely on a doctrine—we should rely on statute law. I hope that the Government will soon introduce legislation which can go to the Joint Committee. I hope that that Committee will be set up as soon as possible so that we can consider all these issues in the round, as they affect whistleblowers, campaigners, those who correspond with MPs and of course constituents. Secondly, there must be greater judicial oversight; it must surely be nonsense that in this country, which prides itself on the rule of law, a politician should be in the position of deciding whether a politician’s communications can be intercepted, and only politicians are in the position of making that judgment. Labour Members believe that a senior judge should be making that decision.

Finally, I come to a point that has been well made by many others: this is not about MPs being a special class of people or seeking special privileges; it is about parliamentarians being able to do the job that they are assigned to by the voters in the country. That should apply not only to Members of this House, but to Members of the other House, Members of the devolved legislatures and Assemblies, and UK Members of the European Parliament. I very much hope that in the next year it will be possible to put the doctrine to bed and have proper statute law to protect our constituents and our ability to hold government to account.

Question put and agreed to.


That this House has considered the operation of the Wilson Doctrine.

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Psychoactive Substances Bill [Lords]

Second Reading

Mr Speaker: I inform Members that I have not selected the amendment.

7.54 pm

The Minister for Policing, Crime and Criminal Justice (Mike Penning): I beg to move, That the Bill be now read a Second time.

It is an honour and a privilege today to introduce this Bill, which has had extensive scrutiny in its passage through the other place. At the outset, may I thank Her Majesty’s Opposition—the new shadow Minister, the hon. Member for West Ham (Lyn Brown), and her predecessors, and the Chief Whip, who has spoken to me extensively about the Bill—for their co-operation? I also thank colleagues from across the House. Sadly, some colleagues in the House are going to oppose this Bill, but, within reason, across the House and across the country we have agreement. I hope that during this short Second Reading debate we will be able to convince those who do not think it is a good thing, because last year 129 people lost their lives in this country because of what they thought was a legal, safe high.

The Bill is a broad piece of legislation, and I freely admit it is new to this House, as we are bringing in a blanket ban. The reason we are doing that is simply that we have been chasing the chemists from around the world for too long. We have attempted to ban 500 substances in this bracket, but then they have tweaked the formulas and the next minute we are back in the same position again.

Caroline Lucas (Brighton, Pavilion) (Green): The Minister has already said that some people in this House, although they do not like psychoactive drugs, do not believe this is the right way of going about legislating on them, not least because similar bans in Ireland led to an increase in the use of these kinds of drugs. Given that that is the case, will he be properly reviewing the implementation of this Bill? If it is put into force and then leads to an increase in online marketing and so forth, will he then repeal it?

Mike Penning: I did not expect to be in confrontation with the hon. Lady so early on, but I think, yet again, that she is wrong. I have been to the Republic of Ireland, as well as to Northern Ireland, and not only seen the damage that these psychoactive substances have done, but met Ministers and their chemists. They think their legislation is working, and I agree with them, and New South Wales has implemented similar legislation within the past five days. The rest of the world may not be right, but in this case I think it is. I have looked extensively at this issue, as has the Select Committee on Home Affairs previously—it is doing so again and we are awaiting its report. In the Republic of Ireland the head shops vanished overnight. There are young and old people who thought these drugs were safe. Whether or not we or the scientists like to call them that, they are classed as and felt in the public domain to be legal, safe highs. That is what young people think they are.

Norman Lamb (North Norfolk) (LD) rose

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Mike Penning: I will make a bit of progress before we come back into confrontation.

Norman Lamb: No confrontation.

Mike Penning: I will give way then.

Norman Lamb: I hope that the Minister accepts that those people who have concerns about this legislation have the same purpose in mind: to try to address substances that are causing harm. Does he not have any concern that if the effect of the legislation is to hand the entire industry over to organised crime, we may end up with unintended consequences?

Mike Penning: If I thought that was going to happen, I would not be standing at this Dispatch Box. It has not happened elsewhere; it did not happen in the Republic of Ireland. What has happened there is that people are alive today who would not have been if the legislation had not been introduced there, which is why this Bill is so important. We will, however, make sure that we learn from the mistakes in the Republic of Ireland, and we are going to accept and work with lots of amendments that were tabled in the other place. I will have to table consequential amendments in Committee to make sure that the Bill is legal in that framework, but we are going to accept these recommendations and changes proposed in the other House.

Lady Hermon (North Down) (Ind): The right hon. Gentleman will know from his experience in Northern Ireland that it is organised crime and paramilitaries who have exploited this legal loophole, making misery for the young people who have got involved in taking legal highs and for the families. I am a Member of Parliament for a mother who grieves for her son who thought he was taking something that was going to do him good but who died because of it. Will the Minister confirm that in Northern Ireland there will be no hesitation in using non-jury trials where there is intimidation and a present and real threat of jury tampering by paramilitaries when we are trying to take forward a prosecution for using these highs?

Mike Penning: Under this legislation, the highest penalty for selling or purchasing these products—particularly for selling—will be seven years, which is not a light sentence. It indicates the severity of the offence. We do not want to criminalise a whole group of people who have, for many years, been buying a product that was perfectly legal, but there are some real changes that we need to make on behalf of our constituents, which is why we are all in this place. For once, we should get ahead of the drug dealers and chemists. Huge amounts of money are involved not only within the paramilitaries but within organised crime. By having a blanket ban, there are real concerns that we will be banning things that we all enjoy. I am talking about caffeine—

Stephen Phillips (Sleaford and North Hykeham) (Con): Nutmeg.

Mike Penning: Yes, nutmeg and the scent of a flower. That would be complete and utter tosh. We will ensure that we insert what we want to insert, just as the Government did in the Republic of Ireland, while at the same time having a blanket ban.

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Keith Vaz (Leicester East) (Lab): The Minister mentioned the Home Affairs Committee inquiry. In fact, the Government caught the Committee by surprise. We were expecting this Bill to come before the House in November. We have finalised our report, thanks to the efforts of the hon. Member for Enfield, Southgate (Mr Burrowes), and it is due to be published on Friday. I wish to put it on the record that Members of the House will be able to look at the deliberations of the Select Committee when it comes to the Committee stage of the Bill, because the Minister has moved so speedily and brought the Bill to the House before we expected it.

Mike Penning: I look forward to the report, not least because of the excellent work that I know has been carried out not only by the Chairman and other Members but by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes).

One reason why we have brought this Bill before the House so quickly and why the business managers have given us the time that we needed is the previous inquiry of the Home Affairs Committee

John Mann (Bassetlaw) (Lab) rose

Mike Penning: If the hon. Gentleman will bear with me, I will give way once I have finished this part of my speech.

The truth of the matter is that we will have an opportunity at Committee and on Report to look carefully at what the Home Affairs Committee has said and to see whether it can be used to improve the Bill.

Kit Malthouse (North West Hampshire) (Con): The Minister mentioned amendments in the House of Lords and sentencing. He will know, because we have corresponded about this, that one of my concerns about this otherwise excellent Bill is to do with the statutory aggravating factors. At the moment, a person will receive a stiffer sentence if they sell outside a school, but not outside a children’s home. I urge the Minister to look at the amendment that was proposed in the House of Lords, encouraged by the Children’s Society. Also, given that the substances are very often targeted at young people—I have evidence in my own constituency of the drugs being used to lure young people into inappropriate sexual relationships—he might consider an amendment to make it a statutory aggravating factor to sell to anybody under the age of 18 so that it attracts a stiffer sentence. Will he consider that on Report?

Mike Penning: My hon. Friend is absolutely right; we have corresponded on this matter. I have looked carefully at what was said in the other place. The Sentencing Council will be responsible for the guidelines. I know that my hon. Friend and the Minister in the other place have agreed to write to the Sentencing Council, and I will do so as well. I will, if I may, keep a very open mind about this matter as we go through the Bill’s stages, particularly the Committee stage.

If we are to have a Sentencing Council, we need to use it in the way that it was designed. I know that there is an anomaly, but my view is that at the moment I will keep an open mind on the matter.

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John Mann: I congratulate the Minister on the speed with which he has introduced this Bill. I have called for a blanket ban several times in the past. Will he clarify this: if this Bill is passed, how quickly will Bing Bong, the outlet in Worksop, be closed down?

Mike Penning: We want such places to close down before this Bill is passed. I want this House to send a message to those who are selling these products—head shops or any other premises, or those selling in other ways—that on the day this Bill gets Royal Assent, such selling will become an offence. In saying that, these people have been selling these products perfectly legally for many, many years, so we need to give them an opportunity. This is only part of a process. We are talking about educating the public as well as helping people who are addicted to these substances. At the end of the day, these sellers have to know that, from the day this Bill gets Royal Assent, selling these products is illegal and attracts a seven-year sentence.

Mr David Burrowes (Enfield, Southgate) (Con): I very much commend this Bill. I have been calling for it for many years. The Sentencing Council has an important role to play. Under the Misuse of Drugs Act 1971, sentencing is linked to harm and is commensurate with the offence. At present, there is inequality in sentencing between all types of new psychoactive substances. We need to be clear and link the harm level to the sentence, and that is the important role that the Sentencing Council will have to play.

Mike Penning: That important matter was put to me when I gave evidence to the Home Affairs Committee. The difference between what we are doing here and what we are doing with other illegal substances is that this is a blanket ban. If we try to indicate the level of harm on every single one of these substances we will be here forever, which is why we have gone for the blanket ban, and why the Republic of Ireland did the same. As I said to my hon. Friend the Member for North West Hampshire (Kit Malthouse), we will continue to look at this matter, but the guidance to the Sentencing Council is very strong. I am so pleased that the hon. Member for Bassetlaw (John Mann) said that he had been calling for this ban for some time, because I shared an office with my hon. Friend the Member for Enfield, Southgate for five years and I know exactly what his views are. I can genuinely say that apart from a few nuances here and there, most people want to see this Bill on the Statute Book.

David Simpson (Upper Bann) (DUP): Will the Minister outline for us just how this legislation will deal with those who sell or buy online?

Mike Penning: It will be just the same as if a person went to a head shop. It is illegal. The National Crime Agency, which is now operating in Northern Ireland—I visited it recently to see the work it is doing—will be working with other agencies to ensure that we prosecute those involved in the crime. People say to me that the web is so open, but at the end of the day, purchasing, like selling, is an offence. If a person purchases these products, we will try to ensure that they are convicted. It does not matter whether they purchase them from a head shop, a friend or online, it is an offence. We are talking about purchase, not possession.

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Ms Tasmina Ahmed-Sheikh (Ochil and South Perthshire) (SNP): I welcome the fact that the Government have worked with the Scottish Government on this issue of joint concern. Will the Minister set out the contact he has had with Scottish Ministers on this issue to date? Perhaps he could advocate this partnership approach to others in his Government who may benefit from Scottish Government input in a range of areas.

Mike Penning: The Scottish Government were working on this matter long before I became the Minister. It was a real pleasure to see the reports that had been done in Scotland. They coincided with the reports that we were seeing from elsewhere. I have corresponded back and forth with Scottish Ministers. We used some of the evidence from their reports in preparing our own legislation. I cannot comment further, but those who know me in this House will say that I always try to ensure that it does not matter what party or what part of the country we come from, because what is important is our constituents and what is right for them. That is why I am so keen for this Bill to get through its Second Reading this evening.

Andrew Stephenson (Pendle) (Con): When I raised this matter on my Facebook page yesterday asking for the views of young people in my constituency, one constituent said that some legal highs specifically say on the packaging that they are not fit for human consumption. Can my right hon. Friend confirm that such a statement will not allow the producers of these drugs simply to bypass the new law?

Mike Penning: I can confirm that. There are uses for some of these drugs within industry, and we want that to continue, particularly in the research field. We cannot help the people who are addicted to some of these substances if we do not give them the right support. If it is seen that someone is producing a product for an industrial use, or for any other use, but they are knowingly selling it, they will be prosecuted. It will be an offence whether or not the product carries that label. That is imperative as we take these measures forward.

Stephen Phillips: Further to the point made by my hon. Friend the Member for Pendle (Andrew Stephenson), it seems to me that the difficulty is that there will be a defence for suppliers of so-called legal highs under clause 5(2) if they do not know or are reckless as to whether the substance is likely to be consumed. If people can say that they are not selling products for human consumption because all that happened was that someone came in and asked for some plant food, it does not necessarily follow that they will be committing an offence under the Bill and that the head shops referred to by the hon. Member for Bassetlaw (John Mann) will close straight away.

Mike Penning: My hon. and learned Friend has studied the Bill and I have worked with him on other Bills, so I know exactly where he is coming from. The intent of the Bill is there. The evidence from the Republic of Ireland is that that did not happen, but if we need to tighten the provisions in Committee we can do so; I think there is consensus across the House on that. The head shops closed literally overnight in the Republic of Ireland, and the problem with that type of sale fell through the floor. If we pass the programme motion later this evening, we will be in Committee next week and we can tighten the Bill if consensus allows.

19 Oct 2015 : Column 736

We can go through all the clauses, but I am sure that everybody has read the Bill so in the time available I want to concentrate on two points. First, what is the purpose of the Bill? It is intended to save people’s lives. I completely get where my former right hon. Friend the Member for North Norfolk (Norman Lamb)—he is still my friend—is coming from. We might not agree 100% on the method, but let us take the Bill through Committee and let us consider the evidence. I know that there is some other evidence from the Republic of Ireland: I have seen it, I have sat with the scientists and I have sat with the Ministers. Let us see whether we can save lives, bearing in mind the 129 we lost last year. That figure is growing dramatically year on year, which is why there has been a campaign for the Bill for some time.

Caroline Lucas (Brighton, Pavilion) (Green): If the Irish ban has been so successful, why has the lifetime prevalence of the use of novel psychoactive substances among young people there increased from 16% to 22% in the past three years? Would it not have been sensible to have done an impact assessment of the situation in Ireland before pressing ahead with the Bill?

Mike Penning: The answer is no, because I do not want any more deaths, which will happen if we hold back now and wait for more studies, for more this and for more that. New South Wales have done this in the past five days. If I look around the Chamber, I see most people nodding and perhaps one or two people doing otherwise—I do not know how the Hansardreporters will work that out later, but they can try. At the end of the day, I am determined to protect the young and old—

Caroline Lucas: Prevalence has gone up.

Mike Penning: The hon. Lady shouts across the Chamber from a sedentary position, but she has not brought the Chamber with her—[Interruption.] Yet again she shouts from a sedentary position and, in a moment, when she has the opportunity, she will try to convince the House that she is right.

Caroline Lucas rose

Mike Penning: I will not give way—actually, I will. Has the hon. Lady been to the Republic of Ireland and spoken to Ministers and scientists?

Caroline Lucas: I have not spoken to them directly, but I have evidence in my hand that tells me that the prevalence among young people has increased from 16% to 22% as a result of the ban in Ireland. I am simply asking the Minister why, if the ban is so successful, the prevalence has gone up.

Mike Penning: So, the answer to my question was no, and the hon. Lady has not been to the Republic of Ireland and has not spoken to the scientists, but she has a piece of paper in front of her that says that we are all wrong and that she is right. On this point, as usual, I am afraid that she is wrong. At the end of the day, what are we sent to this House to do? It is to protect people, and that is what we will do this evening.

Paul Flynn (Newport West) (Lab): Can the Minister tell us the effect of the ban on khat? The reports are that its use continues, but it has gone underground and become more expensive. Or what about the ban on

19 Oct 2015 : Column 737

mephedrone? There was a report that in my area after the ban its use increased by 300%. How many bans reduce drug harm and use?

Mike Penning: I am sure that many individuals in this House could pick on individual substances that have gone underground, making the situation worse, but the vast majority of products that were sold to people who thought they were safe are no longer being sold. That has happened in Ireland and in other countries. I had the New Zealand Minister with me only the other day to look at exactly what we are trying to do. The legislation has been campaigned for over a considerable period and we are taking action, which I would have thought is exactly what we should be doing.

As I have said, I will table amendments in Committee. We listened carefully to the work done by our noble friends in the other place and we will have to make quite a few consequential amendments to frame the amendment they made in the Bill. We are also considering whether there are areas in which we should ban possession.

Steve Brine (Winchester) (Con): The Minister mentions the word “possession”. The word “prisons” appears on the face of the Bill only once. I see that the Prisons Minister is sitting with him on the Front Bench, and I wonder whether when the Bill goes upstairs to Committee they might consider making possession an offence inside the secure estate.

Mike Penning: I have received a large number of delegations that have made arguments about the effect on the prison population, on prison officers and on morale and safety within the secure estate, which includes prisons, and we are going to look very carefully at whether we can propose an amendment. I believe that there are some processes to be followed to ensure that we can do that, but the Prisons Minister and I are minded to ensure that the prison estate is as safe as possible for prisoners as well as staff. Legal highs are having a massive effect on that part of the prison estate as well as on other parts of the secure estate. My hon. Friend the Member for Winchester (Steve Brine), like others in the Chamber, has campaigned long and hard on this issue and has brought it up on more than one occasion. We are considering the issue and I hope to table amendments in Committee.

Anne McLaughlin (Glasgow North East) (SNP): My understanding was that those who would be criminalised by the Bill were those who were supplying, marketing, producing and selling, but twice now the Minister has made a comment that suggests that those who purchase these products might also be criminalised. When I look at clause 8 a wee bit more closely, it seems to be saying that those who purchase via the internet could be criminalised. The Minister is talking about making amendments, so will he be proposing an amendment to take that out? It does not fit the spirit of the Bill.

Mike Penning: The spirit of the Bill is that we do not want to criminalise individuals for possession, but we are going to criminalise the sale and purchase of these substances. That is in the Bill and in the spirit of the Bill, and is in line with the work that we have done.

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Anne McLaughlin rose

Mike Penning: The hon. Lady asked me a question, and I will answer it. In Committee, we will study the Bill line by line, because that is how we do these things and that is right and proper. If the hon. Lady has concerns, we will consider them carefully, but we cannot have someone being able to buy things on the internet and for that to be illegal—or legal—when it would be the opposite to do it in a shop or on the street.

Anne McLaughlin: So, is the Minister saying that purchasing will be criminalised, but not use? As I understand it, these substances do not come free, so to use them one would have to purchase them. I do not know what to say to that.

Mike Penning: I do not understand this argument, and I do not know whether the shadow Minister does. If someone is buying a product that is illegal, that will be illegal. If they are selling a product that is illegal, that will be illegal. We will not criminalise a small group of people—

Pete Wishart (Perth and North Perthshire) (SNP): If you get it for free, is that all right?

Mike Penning: The hon. Gentleman makes a comment when he is not even in the Chamber—he should know better, as he has been here long enough.

Lyn Brown (West Ham) (Lab): I am a little confused by the diversion from where I thought we were going. Would not a purchaser need to know that the substance was illegal when purchasing it? If so, we will need a definition of what psychoactive means. Is that not right?

Mike Penning: That is exactly the situation, and that is exactly what the Bill says. I do not understand the diversion either.

Several hon. Members rose

Mike Penning: Several Members wish to intervene, but I want to provide opportunities for other Members to make speeches, because many more Members support the Bill than it might appear from some of the interventions.

Mark Pawsey (Rugby) (Con): If this is about people knowing that the products are illegal, can the Minister tell us a little bit about the education campaign that will go hand in hand with the legislation to make certain that young people are aware of the dangers and the fact that they will be committing a criminal act?

Mike Penning: My hon. Friend makes an important point. As I said earlier, this is only one part of a campaign to make sure that people understand the dangers and the change in legislation. The police are starting to talk to people and are going into schools. Treatment is important too, but it is a difficult area. My hon. Friend is absolutely right to raise the issue.

Stephen Phillips: I confess to the Minister—I am trying to help—that I am a little confused as well. I do not think that the Bill creates an offence of purchasing

19 Oct 2015 : Column 739

so-called legal highs. Importing is a different matter, and is dealt with in clause 8, which he will no doubt confirm. If he can do so the debate about people buying so-called legal highs and being criminalised will go away.

May I tax the Minister on something else? It is my understanding that if a user of legal highs purchases three or four pills over the internet that are not for human consumption, then gives them to his mates on a night out he has committed an offence. In Committee, we may have to look at whether we intend to criminalise those individuals in the Bill.

Mike Penning: I apologise if I have confused hon. Members. Let me try again. There are relevant provisions: producing a psychoactive substance, which is dealt with in clause 4; supplying, or offering to supply a psychoactive substance, which is dealt with in clause 5; possession of a psychoactive substance with intent to supply under clause 7; and importing or exporting a psychoactive substance under clause 8. I apologise: I kind of misled the House unintentionally on individual possession. I was talking about intent to supply, not intent to use. Making a purchase from a foreign website would be caught, but the purchase on its own from a website or foreign website would not, and I apologise if I misled the House on that point.

Mike Weir (Angus) (SNP): I thank the Minister for that. I support the Bill, but I am slightly concerned about clause 8, which says

“the person intentionally imports a substance,”


“the person…intends to consume the psychoactive substance for its psychoactive effects”.

It seems to me that if someone imports and possesses even a small amount of the substance over the internet he is criminalised, but if he bought it in a head shop, for example, he would not be criminalised, which seems to be a strange provision. My hon. Friend the Member for Glasgow North East (Anne McLaughlin) is trying to make the point that we support provisions to deal with people who have these substances with intent to supply, or are supplying them to people in an evil trade, but to criminalise people for having small amounts of those substances is slightly dangerous.

Mike Penning: That is not the Bill’s intention. As we go through the Bill in Committee we will endeavour to iron out those concerns.

Dr Daniel Poulter (Central Suffolk and North Ipswich) (Con) rose

Mike Penning: I will give way once more, then I will wind up.

Dr Poulter: The Minister is very generous. Does he agree that there is a particular challenge in dealing with the supply of substances from overseas areas outside British jurisdiction? Having an offence in relation to the purchasing of those substances on the internet, which almost certainly would be the means of purchase, helps in some ways to deal with a situation that is otherwise difficult to deal with and legislate for.

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Mike Penning: That is exactly the point, and it is important that we close any loopholes, but there are no intentions to criminalise the people we have been talking about.

Norman Lamb rose

Mike Penning: I will give way once more, but then I will wind up, as Members wish to speak in the debate.

Norman Lamb: I am grateful to the Minister. To follow up the point made by Scottish National party Members, will he explain again why it is illegal to purchase a product that is being imported, but why the Bill does not criminalise the purchase of exactly the same product in this country? We criminalise someone if they happen to buy it overseas, but not if they buy it in this country. What is the logic?

Mike Penning: The logic is to try to stop dealers bringing stuff in through websites. That is close to the legislation that is being used in Ireland, where it is working, so we think it is appropriate.

We will make sure that the House protects people without criminalising any individuals for having small amounts of a substance. We are going to do something that should have been done years ago. There will be a blanket ban so that chemists, organised criminals and, in some parts of these islands, paramilitaries do not work together. We will make sure that the legislation is as tight as possible and will at last do something we should have done before by introducing a blanket ban on psychoactive substances. I hope that the Bill completes its Second Reading this evening.

8.26 pm

Lyn Brown (West Ham) (Lab): The Opposition support the principles of the Bill. The 2015 Labour manifesto included a commitment to ban the sale and distribution of dangerous psychoactive substances, which is why we are with the Minister tonight.

The illicit drugs situation in the UK and throughout the world is constantly changing. Protecting young people from harm is our responsibility, even if we know that there is no silver bullet to reduce the trade in drugs. New psychoactive substances can be a significant danger to public health, and they have taken people’s lives. Jimmy Guichard was a fun-loving, sporty 18-year-old bloke living in Kent. He had heard of legal highs and decided to try them. He bought a packet of Clockwork Orange from a local head shop, and he may have taken a high dose, possibly the same as he would have done for ordinary cannabis. He had a severe reaction, suffered a heart attack and, sadly, died the next day.

Owain Vaughan was 14 when he tried a brand of synthetic cannabis with friends and was overcome by its potency. He described the effects to BBC News:

“It made me physically ill, I collapsed, I started fitting, I tried to get up, but fell straight back down and banged my head…I felt my own heart stop and I was scared.”

Unfortunately, stories like Jimmy’s and Owain’s are not isolated incidents. The Office for National Statistics reports that there were 67 deaths in England and Wales involving psychoactive substances in 2014, so the problem is clearly growing.

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We do not have comprehensive evidence about the overall harm of psychoactive substances, but people have died as a result of taking these drugs. Some of the substances can cause severe adverse effects such as heart palpitations, panic attacks, hallucinations and even psychotic episodes.

The supply of these drugs is becoming an industry. They are made, marketed and supplied by unprincipled organisations for financial profit. Our understanding of the dangers of legal highs has been greatly enhanced by the work of the Angelus Foundation, and I pay tribute to Maryon Stewart, who established the foundation after losing her daughter Hester, a medical student, to the legal high GBL in 2009. Research by the Angelus Foundation has estimated that there were more than 250 head shops in the UK selling these products in 2013. According to the crime survey of England and Wales, around a third of all new psychoactive substances purchased in the UK came from such businesses. Head shops claim that they do not sell illegal substances, but Home Office tests have shown that almost 20% of packets of new psychoactive substances contain illegal drugs.

Head shops and other high street retail outlets normalise drug taking and encourage people to experiment with and use drugs. The names and packaging are designed to attract young adults to experiment, and free samples are regularly used as part of marketing strategies. The fact that substances can be bought on the high street in broad daylight without any sanction whatever gives the illusion that the substances are both safe and legal. There are hundreds of internet sites that sell these substances online, with little or no knowledge of who they are selling to. The Home Office estimates that the industry has an annual turnover of £82 million. Overall, the UK has the largest new psychoactive substances market in Europe.

As the Minister stated, drugs have traditionally been controlled in the UK through the Misuse of Drugs Act 1971, under which the Home Secretary has the power to put substances on a banned list, so long as he or she has consulted the Advisory Council on the Misuse of Drugs. Since the middle of the previous decade, that mechanism has been put under great strain by the explosive growth of new psychoactive substances. We have managed to control some of them, but let us be under no illusion—that has not solved the problem.

The relatively easy process of creating new psychoactive substances means that these new drugs are appearing on the market all the time. In each of the past six years, more substances appeared on the market than was the case in the previous year. The Home Office and the Advisory Council on the Misuse of Drugs cannot keep up because the traditional process of classifying the drugs, with its independent and objective process of assessing the overall harms of a particular substance, can be cumbersome. It is a game of whack-a-mole that the authorities are hard pressed to win. In 2011, the Government tried to deal with the problem by introducing temporary class drug orders. TCDOs allow the Government to ban the production and sale of new psychoactive substances while the ACMD gathers more information on the risk and harm associated with those drugs.

There are problems with TCDOs. First, they are inherently reactive, and there is always a time gap between a drug coming on to the market and being

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subject to control. The second problem is that TCDOs last for only 12 months, which puts significant pressure on the ACMD to assess the harm caused by the drug quickly. Another approach taken by the Home Office under the Labour Government was to add generic groups, rather than specific compounds, to the list of controlled substances. Although this procedure has had some success in controlling new psychoactive substances, it is clear that we are dealing with an evolving problem that our current legal framework cannot get to grips with.

In December 2013, the Government appointed an expert panel that recommended that the most effective way to deal with new psychoactive substances would be to introduce a blanket ban on the supply, importation and exportation of any psychoactive substance that was not specifically controlled or exempted. This approach, as we have heard, is modelled on legislation passed in the Republic of Ireland in 2010. There were 102 head shops in Ireland at that time, according to the Irish police force, and they have now “virtually disappeared”. The expert panel was clear that the number of clients attending drug treatment services had declined: 368 people received treatment for problems in 2011 and that number fell to 220 in 2012. Although I accept that it is too early to make a long-term judgment on the success of the Irish model, it seems to have made a start at tackling the problem.

The Bill takes up the expert panel’s recommendation and makes it a criminal offence to produce, supply, import or export these drugs. I am not so naive as to think that we are going to shut down the industry altogether, even though that is what many people would want, but by more quickly containing production and supply upstream, we will hopefully reduce the harms to young people downstream.

Stephen Phillips: Does the hon. Lady share my concern, which we need to consider when we think about the Bill, that the closure of the head shops makes it possible that the entire trade will be driven underground, that it will link itself with the illegal drug trade, and that those who might at present go on to the high street or into a garage and purchase what they think are legal highs, which may be very dangerous for them, will end up using much more serious class A and class B drugs?

Lyn Brown: I accept what the hon. and learned Gentleman says, but one of the things I find particularly repulsive is that our young people see these head shops in front of them on the high street, and then think that the shops are legal and safe because if they were not, the police would have come along and nabbed them. I will answer him later because we do need to think about what happens with an underground market.

This Bill sends out a message to young people who are unaware that these substances are dangerous. Many of those that are sold in the shops are illegal now, let alone before we ban the lot of them. As I support the aims and general approach of the Bill, I want to ensure that it is drafted and implemented as effectively as possible, so I will press the Government on several issues and worries. I hope that the Minister will take my recommendations and concerns in the constructive manner in which they will be intended.

My first point is about education. The Bill is an appropriate way to try to tackle the supply of dangerous psychoactive substances, but we need to reduce demand.

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Unfortunately, there is a load of misinformation about psychoactive substances. Research by the Royal Society for Public Health found that a quarter of young people aged between 16 and 24 believed that so-called legal highs were safer than illegal drugs. This is a dangerous misunderstanding, because some of the new psychoactive substances have gone on to be controlled and designated as class A, indicating that they were some of the most harmful drugs around before they were controlled. Passing this legislation has the potential to put to bed the dangerous myth that psychoactive substances are safe, but the measure will do so only if it is supported by a concerted communication and education strategy.

The Labour Administration in Wales have shown us how that can be done by putting education at the forefront of their drug prevention strategy. There is now a core substance misuse education programme in 97% of Welsh primary and secondary schools to ensure that almost all Welsh schoolchildren receive accurate, consistent and credible information about the potential harms of drugs, rather than having to rely on myths and guesswork. Labour Members have consistently emphasised the role of PSHE—personal, social, health and economic education—in reducing drug use. I have voted to make PSHE compulsory in schools, and that needs to be considered again.

Dr Philippa Whitford (Central Ayrshire) (SNP): This aspect did not go to the Advisory Committee on the Misuse of Drugs and has therefore been put together without its advice. The use of illegal drugs has been going down not because of locking people up and criminalisation, but because of education. We all want these chemicals not to be used, but we must not overreact and not use education enough, because it is a key tool.

Lyn Brown: The hon. Lady is absolutely right; I completely and utterly agree. Education is the key to this. We need to reduce the demand for the supply.

Thus far, a mere £180,556 has been spent on education programmes on new psychoactive substances, as the Minister told the House in a written answer on 2 June. Sadly, the Government rejected Labour’s amendment to the Bill in the Lords which would have placed a statutory duty on the Secretary of State to increase public awareness and help schools to educate children about the dangers of these drugs. Let me say gently that that is a wholly inadequate response given that the Government themselves recognise that these drugs are a serious problem. If we want young people to have the resilience, the confidence and the knowledge to say no, we have to be fully committed to a comprehensive education programme across the UK.

The next area where the Minister needs to exercise care and caution is proportionality of sentencing. Under the Misuse of Drugs Act, sentences are linked to the harm caused by the drug possessed, supplied or produced—the more harmful the drug, the harsher the maximum sentence. Of course, there is judicial discretion in applying individual sentences, but the general approach of linking to relative harms is important.

The Bill represents a radical departure from previous attempts to control drugs, because it legally decouples controlled substances from an independent and objective assessment of the harm they cause. We understand why that may be appropriate. The process by which the ACMD determines the harm of a substance can be

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lengthy and resource intensive, which is precisely why the Home Office cannot keep up with the illicit market. It is difficult to introduce the concept of harm to the Bill without denying the Home Office the tools it needs to deal with that central problem.

It is because this Bill suggests such a radical change that we need carefully to consider the impact it will have when implemented. I am worried that we might end up in a situation where someone who is prosecuted for selling a weak psychoactive substance faces the possibility of the same seven-year custodial sentence as someone who sells a very dangerous substance. The Bill contains no classification system to differentiate between those two crimes. I fear that the proposed laws could lose the confidence of the public and the judicial system if the issue of proportionality is not looked at carefully. As the Minister will be aware, the issue has exercised the Home Affairs Committee.

I am particularly worried about the proportionality of sentencing for young people involved in social supply. It is not unusual for a number of young people to club together and for one person to buy substances off the internet and distribute them among friends, or even for one individual to sell a small amount to a friend. The Bill makes no distinction between those people and large-scale importers. We need to look at that.

Has the Minister considered providing credible measures for a relatively harmless substance to be excluded from the controls, if that is deemed appropriate? Conversely, if a new psychoactive substance proves to be particularly harmful, surely it should be removed from the scope of the Bill and controlled under the Misuse of Drugs Act. Reviewing that may be an appropriate responsibility of the ACMD.

Another issue that needs careful consideration is how the police and prosecutors can both determine and prove that a substance is psychoactive. I am sure the Minister is aware that Professor Iverson, chair of the ACMD, has previously written to the Home Secretary warning her that we will have to rely on proxy measures of psychoactivity, such as in vitro neurochemical tests, in order to prove psychoactivity, but that they may not stand up in court.

We should take Professor Iversen’s warnings seriously. Although similar legislation in Ireland appears to have been broadly successful—given the statistics I quoted earlier—there have been only five successful prosecutions. Police in Ireland have admitted that that is because they find it difficult to prove the psychoactivity of substances. We want sellers to stop selling psychoactive substances voluntarily, and for consumers to stop purchasing the drugs. However, it is hard to imagine that that would work without any prosecutions at all. The law simply would not provide a credible deterrent.

Mike Penning: I raised this issue with the Minister in Ireland, where local authorities and others can use the powers they have been given without having to go all the way to the criminal courts. This Bill also gives extensive powers to local authorities. That addresses some of the hon. Lady’s concerns, but the Bill Committee will look at the issue in more depth.

Lyn Brown: I am grateful to the Minister for that assurance. If the ban pushes supply away from the high street and increases online sales, there will be a need for

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resources and to look at how technology and international co-operation can disrupt supply and delivery routes. Is the National Crime Agency going to take the lead on online sellers? Does the Minister have the information to hand? Perhaps he could inform us of the plans when he winds up the debate.

Paul Flynn: The European Monitoring Centre for Drugs and Drug Addiction in Lisbon has reported that the lifetime use of these substances in Ireland before the ban was 16%, but that four years after the ban it had increased to 22%. Is it not true that almost every drug ban has resulted in an increase in usage?

Lyn Brown: I have only been in this job for two weeks, but if I had been in it for a bit longer and the Public Bill Committee was not next week, I would have nipped over to Ireland to find out. My information is that the ban has closed down the head shops. The second piece of information from Ireland is that the number of people going to hospital with the effects of psychoactive drugs has also declined. I have managed to glean those two pieces of information from Ireland. I promise that I will do more research on Ireland before the Committee next week. Even if I am not allowed to go across to Ireland—can I go?—I will certainly have a look at that. [Interruption.]

Norman Lamb: I will not take that groan personally. To follow up on the intervention by the hon. Member for Newport West (Paul Flynn), the hon. Lady may be interested to know that in Poland, where the same approach is being applied, the number of poisonings—this is about damage to young people—has gone up dramatically since the ban came in from 562 cases in 2010 to 1,600 in the first 10 months of 2014. Does that not give her cause to pause in supporting the Bill?

Lyn Brown: I genuinely think that Ireland is much more comparable to us than Poland. However, I do not think that I will get to Poland in the next week—if I can, I will—but I will certainly look at the evidence cited by the hon. Gentleman.

Lady Hermon: Will the hon. Lady give way?

Lyn Brown: No, I will make some progress.

John Mann: Before my hon. Friend continues, is she aware of the recent evidence from Ireland showing that the number of people who have accessed services for treatment for such drugs has significantly reduced over the past three years?

Lyn Brown: I thought I had said that, but I obviously did not say it well enough. However, I thank my hon. Friend for his assistance.

I understand that the ACMD has offered to work with the Home Office to try to overcome the problem of needing to prove psychoactivity, and that the ACMD believes the issue can be resolved. I look forward to the Minister informing the House about what progress is being made on that issue so that we can be assured that the Bill has the teeth it needs. The definition of psychoactivity should be at the core of the Bill, so I am rather surprised that the Government felt able to move the Bill’s Second Reading without that point being

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resolved. The ACMD recently met the Home Secretary, and the House really needs some detail on how the discussions are progressing.

I want the Minister to consider monitoring and evaluation. I am pleased that the Government are now making a statutory commitment to review how well the Bill works. However, it is important that we are given more details of the intended scope of the review. We need to know that we are breaking up not just the legal market, but the overall supply chain as well. Ultimately, the ban may have the effect of reducing the number of users of NPSs, but of increasing the risk for those who continue to use them. It is clear that a wide-ranging and comprehensive review, backed up by thorough and better research, will be necessary.

I also want the Minister—he can see that I have a long list—to speak to his colleagues in the Ministry of Justice to see whether the impact on prisons can be given particular attention. I am sure that he was as alarmed as I was by the prisons and probation ombudsman’s report in July, which found that new psychoactive substances were a factor in the deaths of at least 19 prisoners between 2012 and 2014. The annual report of Her Majesty’s chief inspector of prisons was just as concerning. It found that NPS

“has had a severe impact and has led to debt and associated violence.”

That is a real problem for our prisons, and we need to know that it is being dealt with.

Stephen Phillips: A point that may not have occurred to the hon. Lady arises from the two points that she has put to the Minister—the impact on the MOJ’s budget of the difficulty of proving that something is a psychoactive substance within the meaning of clause 2. That issue will inevitably have to go to a jury, and will therefore require expert evidence on both the prosecution and the defence sides. Has she considered the potential financial effects on the legal aid budget if clause 2 is not amended?

Lyn Brown: I am clearly being far too subtle. I am not often accused of that. I talked about resources and clearly we understand that that will be an issue. I thank the hon. and learned Gentleman for drawing the point out and for being so succinct.

The Home Secretary has said that the Home Office is actively considering the point about prisons and intends to table an amendment in Committee. I hope that that is still the Government’s intention. I will examine any such amendment carefully.

Mike Penning: Perhaps I was a bit too subtle as well, because I think I said that we would do that.

Lyn Brown: We are not often accused of that, are we?

Mike Penning: No.

Lyn Brown: In conclusion, the Opposition want the best possible Bill so that young people are not exposed to these dangerous, untested substances and so that we reduce the harm that they do. I want to work with the Government to ensure that that happens. That means looking seriously at the potential weaknesses in the Bill. We will stress throughout the legislative process and beyond that this problem cannot be tackled through law enforcement alone. We need to restrict supply and demand.

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That means looking once again at the state of drugs education in this country, alongside reducing the overall public health harms.

Several hon. Members rose

Madam Deputy Speaker (Natascha Engel): Order. We have calculated that with 17 Members wishing to catch the eye of the Chair, it works out at about 12 minutes each if the House sits until midnight. I will not impose a time limit, but I ask people to self-regulate.

8.51 pm

Steve Brine (Winchester) (Con): It is a pleasure to follow the shadow Minister. I very much enjoyed her subtly constructive contribution to the debate. I am sure that the Committee will be great fun.

There were many good things about the Conservative manifesto on which Government Members were elected in May. The inclusion of a commitment to

“create a blanket ban on all new psychoactive substances”

was very welcome to my constituents in Winchester.

Like many Members who are here tonight, I have spoken about this subject many times since entering the House in 2010. There have been numerous debates in this Chamber and Westminster Hall, and it has been raised frequently in Home Office questions and Prime Minister’s questions. As a Back Bencher in the last Parliament and, in its final year, as Parliamentary Private Secretary to the excellent Minister who opened the debate from the Dispatch Box, this has been something of a mission for me. I must say at the outset that I will support the Bill tonight. I thank the Minister for the way in which he laid it out for us.

As I have said many times, new psychoactive substances, or legal highs as they are commonly known, are often not legal and do not always get people high. Why do I say that? Very often they land people under arrest because they are not legal and, in too many tragic cases, they do not get people high but cost them their lives.

NPSs are notoriously difficult to identify. Currently, they have to be regulated on a substance-by-substance or group-by-group basis because of their diversity and the speed with which they are developed to replace drugs that are controlled under the Misuse of Drugs Act 1971. Many NPSs are legal because they have not yet been assessed for their harm and considered for control under the 1971 Act. That is not because they are inherently safe for human use—far from it.

That is the cruellest danger of the legal highs that I have seen. So often, they are sold as harmless fun at high-street head shops or at the festivals that I happily frequent every summer. As the Parliament of this country, we have a grave responsibility to protect our children from this menace. As things stand, we are simply not doing that.

Mephedrone is probably the best example of a legal high that was just that until people died and we acted. It appeared in 2008-09 and quickly gained a lot of media attention due to its tragic death toll. It became a class B drug in April 2010 and has declined significantly in popularity since.

Ketamine is another example of a “party drug” that, although originally a class C drug, has left lives ruined or worse in its wake. For those who are listening to this

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debate, whether outside the House or inside it, I will be blunt. Ketamine is a powerful general anaesthetic that stops one feeling pain. It is used for operations on humans and animals. If you’re lucky, the effects do not last that long. Until those effects wear off, ketamine can cause a loss of feeling in the body, paralysis of the muscles, confusion, agitation, panic attacks, and impairment of the short and long-term memory. Frequent use is sometimes associated with the development of severe depression. Again we acted, and in June 2014 ketamine changed from a class C to a class B drug.

Sadly, that was not soon enough for 18-year-old Ellie Rowe, who collapsed at a festival in my constituency in August 2013 after taking the drug. Ellie was a dedicated Army cadet, and she obtained the Duke of Edinburgh gold award a few months before her death. She had everything to live for, but for £40 her life was gone. That paltry sum got her and her best friend two grams of the drug which, according to the inquest that followed, she inhaled after drinking several cans of lager and suffered a fatal cardiac arrest as a result.

Speaking after the verdict, her dad said:

“I always imagined if any harm came to Ellie it would be on a bungee jump or canoeing down a fierce river or in an accident on a mountain—but nothing like this. She was so sensible. It’s an absolute tragedy for our family. It was one act of stupidity that has destroyed a family.”

Ellie’s mum was at the festival in Winchester this summer and last summer—the summer after her daughter died there—warning young people about the dangers they face from these drugs. I spoke to Ellie’s mum, Wendy, this morning, and it was not an easy conversation. She gave me permission to use her daughter’s tragic case in today’s debate, for which I thank her. Her message was this: yes, ban these substances, especially if it reduces demand, but please do not think that the law is the start and the end of the matter—I suspect that other Members will raise that point tonight. Of course we do not think that, and as the Minister said in his opening remarks, we must be careful about criminalising young people for silly mistakes. A criminal record can also ruin lives, and education about the dangers of these drugs—legally as much as physically—must not stop if this Bill receives Royal Assent.

Wendy’s final point when we spoke this morning was telling. She said that we should help young people to broaden their horizons and expand their consciousness without the aid of mind-altering drugs. Perhaps our education system in this country is not making room for our young people to be creative enough—possibly that is too deep for this time on a Monday night, but my point remains.

I am reminded of the opening lines from that seminal track, “Loaded”, by Primal Scream—a band that I am sure you are very familiar with, Madam Deputy Speaker. It is taken from the classic 1960s film “The Wild Angels” starring Peter Fonda. The question posed at the start of the song is:

“Just what is it that you want to do?”

Heavenly Blues, played by Peter Fonda, replies:

“We wanna be free

We wanna be free to do what we wanna do

And we wanna get loaded

And we wanna have a good time”.

It is a great song.

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That may be the first time that Primal Scream has been quoted in this House, but there is a serious point. The music industry and the popular culture industry have a responsibility, and we as a society must dig deep into why young people in our country today want to alter their state of mind and get so “loaded” or “wasted”—there are many other words—as part of what should be a fun night out.

In preparing my remarks for this debate, I acknowledge the contribution of Hampshire constabulary, Dr Ruth Milton, our director of public health in Hampshire, and Jack Briggs of drug and alcohol specialists Baseline Training, which is based my constituency. The picture they give of NPS prevalence in Hampshire is consistent and deeply worrying. An intelligence overview produced by Hampshire constabulary in March this year found that across Hampshire and the Isle of Wight there were at least 16 NPS retailers—head shops—with the number growing all the time. Analysis by the constabulary suggests that NPS use is more common in areas surrounding head shops, and that in turn leads to more shops opening to meet the demand.

Winchester has its store on Stockbridge Road, which is passed by hundreds of school and college students every day. It is even neatly placed right by the city railway station. I have been inundated with complaints about that shop from constituents, and I was pleased to give them our manifesto commitment—which we are debating today—in response.

An intelligence report to the Hampshire and Isle of Wight drug strategy group in April this year reported that NPSs remain in “prolific common use”, with vulnerable people such as those with alcohol addiction, mental health issues and homelessness being susceptible to targeting by NPS dealers.

The reference to homeless people in the city of Winchester and long-term drug users being targeted to move on to NPSs certainly struck a chord with me. Trinity Winchester is a charity in my constituency which addresses the effects of homelessness and vulnerability through specialist practical help and support. Sue and Michelle from Trinity confirmed to me, ahead of today’s debate, the stark increase they have seen in clients under the effect of NPS. Equally, Winchester’s night shelter sees the effects of NPSs on a daily basis in its work.

The harm NPSs are causing and the complexity they are adding to already stretched public services is of grave concern to me as a constituency MP. This is supported by anecdotal reports from Winchester’s mental health team, which reports considerable problems as a result of NPS use. They speak of some withdrawal symptoms which appear to mimic mental illness, settling down once the NPSs have left their system. The mental health team reports that NPSs have been noticed locally as having a significant impact on severity, longevity and intensity of psychosis. They also cause problems with finding the right treatment for a patient, hence the case complexity. As Sue from Trinity said to me just this morning:

“We exist to help people with work and housing problems. We cannot begin with them if they are presenting to us spaced out or worse.”

Before concluding, I want to touch on prisons. In the previous Parliament, I was fortunate enough to serve on the Justice Committee, which gave me a wide insight

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into prisons and the challenges they increasingly face with NPSs. It is true that problems in the wider community sooner or later become problems in the secure estate. Whether we like to admit it or not, prisons are merely a reflection of our society. According to an excellent briefing sent to me by the Rehabilitation for Addicted Prisoners Trust, NPS use has quickly become widespread among prisoners. The 2015 annual report from the National Offender Management Service affirmed that increased NPS use among prisoners is generating high levels of debt, intimidation and violence between prisoners, and is likely to be the main catalyst for the recent rise in attacks on prison staff.

Reports given to me by HMP-YOI Winchester confirm the use of legal highs inside its walls is now widespread. Winchester now has trained drugs dogs, but there are a variety of compounds used in NPSs, so if the core compound is not the same as the dog has been trained for, it simply misses the substance. It seems the new currency inside our prisons is not tobacco or cannabis, but the NPS known as Spice. It is a lethal substance existing under the brand names Herbal Haze, Damnation and Space Cadet. The governor told me that on one day last month there were three ambulances in the prison yard, after three prisoners had taken Spice.

Paul Flynn: How will the Bill reduce the prevalence of Spice in prisons, when all illegal drugs are freely available in all our prisons?

Steve Brine: I have already talked, in exchanges with those on the Front Bench, about amendments I would like to see tabled in Committee on the possession of legal highs in the secure state. The Minister gave a very strong response. I dare say the hon. Gentleman will have his chance to make his remarks later on.

This trend in our prisons is worrying on many levels, but it is another reason why we need a social revolution in this country about how we use prisons. As the governor of Winchester prison said to me, today’s debate is not just about making NPSs illegal; it is about looking at the effects that that will have on the prison economy and behaviours. He said:

“Prisoners will always want to use illegal substances whether they be a class A or B drugs or NPS. There has to be more done to support for those who want to kick the habit. Our services are being stretched. The punishments for those caught with NPS or any other drug have to be substantial. However, the trick is to ensure that this does not then incentivise more bullying and coercion. A total ban will clarify the position, but cannot be done in isolation in my view. There needs to be a range of things available to support vulnerable prisoners who have a drug habit.”

I could not put it better myself, which is why I quote the governor.

I want to place on the record how pleased I was to see noble Lords in the other place amend the Bill on Report to ensure the supply of a substance banned under the Act in prison would be an aggravated offence under section 5. I believe we need to go further, and that has already been covered with the Minister.

It is important to note that tackling this menace is not all about waiting for this Parliament to act, important as that is. Just last week, the police and crime commissioner for Hampshire, Simon Hayes, launched his Lethal Highs campaign to raise awareness among young people of the dangers of NPSs. The advertising campaign that supports it does not pull its punches and that is welcome by me. Equally, Hampshire’s public health response is

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built around reducing demand, restricting supply and the use of Trading Standards. Hampshire is working with Catch22, training professionals in education, social care and health to better support their efforts, and Hampshire Trading Standards has been active in pursuing a change in the legislation—I believe it supports the Bill. Using the existing law, however, Trading Standards has been unable to secure a prosecution for the sale of NPSs. Instead, it focuses on supporting the police down the route of antisocial behaviour legislation where the problem is associated in the area of a particular retailer.

It does not take a genius to work out that this is fiddling while Rome burns. It is all good work, but we are tying hands behind backs without the Bill. Its critics, from whom I dare say we will hear tonight, have argued that the market will continue as before, through internet sales, and be driven underground into criminal hands. I am not sure I entirely agree. The expert panel reported that the main drivers of NPS consumption were, one, legality; two, availability; three, potency; and four, price. Often, these substances are highly intoxicating but give relatively little pleasure, so it is reasonable to argue that people will be much less likely to seek them once their legal status has changed.

In conclusion, by creating a blanket ban on the production, distribution, sale and supply of psychoactive substances in the UK, we will change the rules of the game hugely in favour of the police and other agencies working to keep our constituents safe. For that reason, I am happy to support the Bill on Second Reading.

9.5 pm

Anne McLaughlin (Glasgow North East) (SNP): I rise to offer the Scottish National party’s tentative support for the Bill to proceed to the next stage. I say “tentative” because as it stands the Bill has not resolved many fundamental questions, meaning that the Committee will have its work cut out. None the less, we will support it today because we must tackle the alarming rise in the use of so-called legal highs and because further delays might result in lives being lost that could have been saved.

Of course, the term “legal high” is misleading, given that not all these substances are stimulants and many contain controlled substances. It misleads young people into believing that they are safer, more sophisticated or less likely to land them in trouble than the traditional drugs they mimic. Language is important, and nobody knows that better than those who bring these products to market. I refuse to name any products because the names make them sound bold, exciting and adventurous, when in fact they can have catastrophic impacts on someone’s life, and, as we know, in many cases they have ended people’s lives, sometimes in minutes.

I urge colleagues to refuse to use the names that the marketing consultants give to their dangerous substances and to limit their use of the term “legal high”. Some believe they would not be legal if they were dangerous, so we, as legislators, must ensure consistency in how we deal with these emerging substances. The Bill will create a blanket ban to prohibit and disrupt the production, distribution, sale and supply of NPSs in the UK. This consistent approach will have the benefit of removing all doubt about the legal consequences of being involved in the manufacture or distribution of these substances and will highlight the safety concerns of society at large about NPSs.

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Jim Shannon (Strangford) (DUP): An organisation called FASA, which is doing some great work in my constituency, has indicated to me its concern that resources be put in place to help people off those legal highs when the law changes—I hope—next April. Should the Government look at that as well?

Anne McLaughlin: I will always support treating drug use as a health issue above anything else, so obviously I would support giving help to people struggling with it.

The Bill addresses the difficulties that have arisen in controlling the use of these substances under the Misuse of Drugs Act 1971. The SNP supports the aims of the Bill, and the Scottish Government have been working with the Home Office and other partners in combating the use of harmful NPSs. Let us not pretend that they are not harmful. A Scottish Drugs Forum survey of drug services in 2013 provided a summary of some of the key harms associated with NPS use—overdose and temporary psychotic states, attendance at A and E, hospital admissions, sudden increase in body temperature and heart rate, coma, risk to internal organs, hallucination and vomiting. The list goes on. Some would argue that many of these effects can occur as a result of alcohol abuse, but with these substances no abuse is necessary; simply their use can have catastrophic effects. There were also some associated long-term health issues such as an increase in mental health issues, including psychosis, paranoia, anxiety, psychiatric complications and depression —and dependency, which can happen over a very short period of time, sometimes just a matter of weeks.

Many hon. Members will have received correspondence from their constituents, and today we have heard some horrifying examples of the impact of these substances. Faced with a personal testimony and a growing body of research from health practitioners and academic researchers, we have a duty as legislators to get this legislation right. We are not yet there. The Committee must explore in detail some of the concerns raised today, including the issue of driving sales underground, internet sales and how to ban them, either on the clearnet or the darknet, and the issue of proportionality in sentencing, which the hon. Member for West Ham (Lyn Brown) mentioned. There are many other issues, too.

The Scottish Government have commissioned research to look at trends and, more importantly, at the motivations of those consuming these substances. In February this year, the expert review group commissioned by the Scottish Government put forward a number of recommendations, which should be of interest to Members in debating the Bill. One of these was the development of a definition of “new psychoactive substances”, which could be used across all sectors attempting to deal with these issues, especially the NHS and enforcement agencies.

It is crucial to ensure that we get the definition of NPS right in this Bill. Speaking as a new Member, I often wonder whether it is just the way things are done here, but I am quite certain that most Members would agree it is not acceptable to have reached this stage of legislation while still not having a definition with which everyone can agree. Most alarmingly, the chair of the Advisory Council on the Misuse of Drugs has said that the definition we are being asked to agree to is unworkable. I urge the Bill Committee to consider the evidence of the ACMD and find a workable definition.

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Jim Shannon: I do not want to let this subject pass. The Republic of Ireland has very clear legislation with a very clear meaning. Does the hon. Lady feel that the Republic of Ireland has set in place legislation that could set a precedent for the rest of the United Kingdom of Great Britain and Northern Ireland?

Anne McLaughlin: I think the legislation in the Republic of Ireland is interesting. It is one of a number of countries whose legislation we should look at. A number of countries throughout the world have experience of legislating on this issue, and we should reflect on such legislation.

A related issue that also featured in the recommendations is ensuring a cross-agency working approach, as my hon. Friend the Member for Ochil and South Perthshire (Ms Ahmed-Sheikh) discussed with the Minister earlier, that is required to tackle what is a sophisticated—unlike myself—emerging and extremely adaptable public health problem. If we get this Bill right, it will be a significant step forward. That is why I ask the Government to ensure that the legislation is not rushed. Although we all would like to see this threat dealt with speedily, it is in no one’s interest to see the Bill rushed through with loopholes that can be exploited by the producers of these products in the future.

At the age of 18, I recall thinking that people in their 20s, including 20-year-olds, were so much older and far too old to understand what it was like for us 18-year-olds. It sounds ridiculous now that I have aged just a fraction, but it is just a fact of life that if any of us here—and yes, this might even include my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands)—were to try to tell a young person about the potential hazards of these substances, they would be more likely to switch off, asking themselves, “What do they know?” It is therefore crucial that young people equip themselves with the facts and educate each other. We can support that education, but we absolutely must work with young people.

In recognition of that point, Paul Wheelhouse, the Scottish Government’s Community Safety and Legal Affairs Minister, attended an event at the Scottish Youth Parliament at the end of September to discuss the best approaches to raising awareness of the dangers of NPSs. The SNP Government will continue to work closely with the SYP—there are too many letters here—and they will shortly present a report on their findings to the NPS ministerial cross-party working group.

I would urge both Governments to continue to work with young people, but I would urge them to work with a broad spectrum of young people. For example, looked-after young people who have come through the care system will have a different perspective from those who have grown up in a traditional family. Young people with BME backgrounds may have a very different perspective from members of the predominant race in their society, and those growing up in poorer areas and households will undoubtedly see things very differently from those with healthier upbringings.

I want to share with Members my perspective on all this during my youth. I confess that I have never—not once—touched a single illegal substance. I say “confess” because when I was growing up, it was a bit of a confession. There was a lot of peer pressure, although nothing like as much as there is today. I managed to

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resist all temptation because of a hauntingly beautiful young woman of whom I would catch a glimpse from time to time as my dad dropped my mum off at work. My mother was a psychiatric nurse who worked night shifts. I always said that I could not do that, but here I am.

Fiona was not the name of that beautiful young woman, but that is what I am going to call her. She had a look of Snow White about her. She was 18. She had been celebrating with her friends, and she had had much to celebrate, because she had just heard that she had managed to get straight As and would be heading off to medical school the following month. She did not make it. Instead, she ended up in a locked ward with my mum as one of her nurses. She remained there for almost four decades, and has only now moved into supported accommodation.

Fiona’s life turned out to be so different from the one to which she had been looking forward on that fateful night. She ended up in hospital that night, and spent nearly four decades there, because she had taken something. No one knew exactly what it was, and her friends say that her drink must have been spiked because she would not have done it voluntarily. Who knows the truth? But it was a hallucinogenic, and it sparked off a latent psychosis which might have lain dormant throughout her life. Instead, it was activated that night, and her life became dominated by terrifying panic attacks, hallucinations, and paranoia so great that she felt like a kidnap victim who was being kept against her will rather than a patient being cared for by my mum and her colleagues.

This hauntingly beautiful, extremely intelligent young woman with a bright future ahead of her got none of what she deserved from life. Her story is an extreme one, and the risks of the same thing happening are relatively low, but the consequences would be too great for anyone to bear. There were too many unknowns for a control freak like me, and, by telling me that story, my mother very cleverly guaranteed that I would never take the risk.

There will be many different motivations that entice or drive young people to experiment with mind-altering substances, and many different messages that prevent others from experimenting. Our primary interest should be in keeping them safe and healthy, not in punishing them. I therefore welcome the commitment that I believe the Bill provides to criminalising suppliers and not users. I also welcome the Minister’s assurance, following interventions from Members on both sides of the House, that he will iron out the anomalies in clause 8. Not sitting in moral or legal judgment of those who use these substances will give us a huge head start when we are trying to find ways to discourage them. The Bill is right to target those who gain a financial benefit from dangerous substances, the dealers and producers. Many NPSs are cynically marketed to avoid existing restrictions while also making clear what effect they will have on the purchaser.