It is not just the manufacture and content of the drugs that are always one step ahead of the law; it is also the importation, supply, marketing and sale. The nub of the matter before us today is this: I share with the Government the desire that our children, grandchildren and godchildren, and indeed everyone else’s, should not take drugs, but I am not so naive as to believe that, whatever I or the Government say—and I do not set much store by government messages—children will not do that. Every scrap of evidence that we have tells us that they will and do take drugs, in exactly the same way that your Lordships will drop into the Bishops’ Bar for a drink after this debate, and for exactly the same reason.

Here is where I differ from the Government: when our children and grandchildren go out to buy drugs, I would infinitely prefer that they bought a product that was as safe as we could make it—safer than nicotine

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or alcohol, I hope—with its contents free for all to see, at a price that is reasonable, and from a regulated supplier, like nicotine, alcohol and, I hope, prescription drugs. Today the Government are ensuring that that will not happen and that the only suppliers of these products will be unscrupulous criminals, way outside the reach of the law, selling drugs to our children and grandchildren in the dark—the dark of the street corner or the dark of the web. Some will be caught; most will get away with it. Actually I do not really care what happens to them, but I care desperately about the young people who will be harmed and their inconsolable families.

My noble friend Lady Hollins talked about evidence. We do not have enough evidence. She talked about delaying the Bill. I doubt that the Government will; they never delay Bills. It is clear from the remarks all over the House that the evidence about where these drugs come from, and how they will arrive in future, is unclear. However well meaning the Government are, and I am quite certain that they are, all the evidence from the past 40 years is that attempts to control the supply of drugs have failed, and that tells us what might happen in future.

The Government cite as support for their case what has happened in Ireland and Poland. The Minister was kind enough to take the trouble to go through the Bill with me, and I am grateful for that. The Government clearly believe that the measures in Ireland and Poland have been a success. I have to say that the evidence I have seen, as for other speakers around the House, indicates that the early fall in drug use and its consequences in those countries have been reversed, and that the problems are now increasing and will increase further, as the noble Lord, Lord Rosser, suggests. Both sides cannot be right but it is clear that the evidence is not well-enough developed to form a balanced opinion, and to legislate without a balanced view, without being able to make a judgment, is a mistake.

In preparing for this debate I looked at the European Union’s contribution: its directive, which is 47 pages long. Rather like the SNP’s manifesto, it may be a cracking read, but I could not keep awake for all 47 pages. However, one part of it that jumped out at me from the page was where it said that the European Union’s own response was “inadequate”. To call your own response inadequate is quite something—and it needs another response. Whether the next one will be another 47 pages, I do not know.

Past evidence has repeatedly shown that a gap in the market is almost immediately filled by somebody else. More than that, a restricted drug is replaced by a more dangerous one, as we have already heard. That has happened in the UK in the past, and it will happen again now. Poly-drug users—users of lots of different drugs, which nowadays is everybody—are not by their nature very choosy.

Fascinatingly, in the Bill, for the first time ever, as other noble Lords have pointed out, possession for personal use will not be a crime. I would be fascinated to hear my noble friend explain the Government’s thinking behind that. I agree with it, but if it applies to these drugs, why does it not apply to all the other drugs, too? That would be the route to go down.

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In politics, as in most things, timing is everything. All over the world today, the mood is turning against the war on drugs. The USA, South America and middle America, and other countries such as Afghanistan and Mexico, which have been torn apart by drug cartels and drug-related crime and which have enormous health and social problems, are slowly beginning to turn away from using the criminal justice system to solve what is a health and social problem. I admire the Government’s resolve and I applaud their motivation in seeking to tackle this issue today, but I wonder about their motivation, and whether they remember the story of King Canute.

Recreational drugs are a demand-led market. Before us today is another measure to restrict the supply of those drugs. It may or may not succeed; I imagine it will, to a certain extent. Past evidence is that it will not displace some supplies for very long. However, the demand following this measure will remain unchanged, and so the likelihood on the evidence we have today is that the demand will be met in another way, and that will lead us back to square 1.

5.42 pm

Lord Howarth of Newport: My Lords, we are agreed on all sides of the House that, with new psychoactive substances, we are presented with a seriously dangerous situation. Noble Lords have mentioned the numbers of deaths that have been recorded; we have no statistics—we cannot obtain them—on the amount of long-term damage to mental health and on other health damages that may be caused by the use of those substances. Very frequently, we read stories in the media about tragic outcomes for young people who have taken a new psychoactive substance of one sort or another. The noble Lord, Lord Farmer, spoke eloquently about the anxieties of parents and the responsibilities that government has to support parents and families, and he was quite right on that point.

It is a simple thing for a moderately competent organic chemist to tweak the molecular structure of an existing, controlled substance to create a new substance which, as the law stands, is uncontrolled. The development of the internet has transformed the marketing and distribution of drugs, so that we face this hideously dangerous combination of the facility with which new substances can be created, distributed and obtained.

The latest annual report of the European Monitoring Centre for Drugs and Drug Addiction talks in some detail about how web sales are developing. It is an unfortunate fact that Britons appear to be exceptionally reckless, prone to bingeing and poly-drug usage and relaxed about buying their drugs from sources about whom they know little or nothing. The new toxicology is terrifying. Mephedrone is effective at a 10th of the dose of ecstasy, and a gram of a new hallucinogen may contain enough to provide 5,000 doses. The noble Lord, Lord Kirkwood, talked about the importance of dosage in this situation. People who consume new psychoactive substances are doing so on the basis of no information about the composition, safety or toxicity of the substances that they are ingesting. It can be only a question of time before a new psychoactive substance that has widely lethal consequences is launched on a market of ignorant and gullible consumers.

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Clearly, action is necessary and the Government are right to seek to address this problem. However, there is no clear solution, as I think we all agree. What we certainly need is a rational discussion, and I am very pleased that the All-Party Parliamentary Group on Drug Policy Reform, chaired so ably by my noble friend Lady Meacher—I call her “my noble friend” because I regard her as a great friend—initiated this process. I add to the praise that has been given to Norman Baker for the work that he did as a Minister in the Home Office in the coalition Government, and for the establishment of the expert group, which indeed contains some very real experts—among them people who were witnesses to the all-party group’s inquiry. Similar processes have been undertaken in Scotland and Wales, leading to broadly similar conclusions.

However, I believe that the impulse to slap into manifestos a commitment to ban was all too typical of the way that politics works and that we would have done better to go more slowly. Is it really true that the Government omitted to consult the Advisory Council on the Misuse of Drugs as they drafted this legislation—or at least not until the very last stage when the Bill was already written and just before it was tabled in Parliament? Did they ask the council for its advice on the relatively narrow, though very important, aspect of the legislation, which is how on earth people are to discover what is a psychoactive drug and what is not? As my noble friend Lord Patel noted, the ACMD has a statutory duty to act as the Government’s adviser in this field. I hope that if they failed to seek the ACMD’s advice earlier, it was not because Home Office Ministers have all too often not liked the advice that they have received from the ACMD, whether it is about the classification of cannabis or about khat, or indeed about how to deal with nitrous oxide, which it recommended should not be banned but will be caught by the Bill. The ACMD should not be sidelined.

Noble Lords will have seen a very powerful critique of the legislation from Transform and Release, which reached me only yesterday. If noble Lords on the Front Benches have not yet had an opportunity to study that critique, I hope that they will do so. The briefing from Transform and Release raises a whole number of questions about police powers, the legal and scientific complexities associated with the Government’s proposals, the impacts on research and the thinness of the impact assessment. All those matters we can examine more closely in Committee.

The problem that we have to deal with is not that people use psychoactive substances. They always have, whether for stimulus, for insight, for relaxation, for pleasure, for oblivion, for the thrill of risk or for the thrill of challenging authority. The question is not whether we should seek to ban all psychoactive substances; the Government are not proposing to do that. Who are we, as politicians, to tell people what psychoactive substances they may use or what their recreational practices should be? At least I am pleased that the Government have not sought to criminalise use. However, I fear that this decriminalisation is more apparent than real, because they will criminalise social use in the sense that a group of people might share a substance, and they will of course criminalise the importation of psychoactive substances. The problem that we need to

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address is the risks and dangers that consumers are undergoing. We need to ask how we can protect them as well as we can from the dangers that many noble Lords have described. The object in drugs policy should be to minimise these dangers and the harms that drugs cause.

All the evidence we have about the history of prohibition, as my noble friend Lady Bakewell reminded us, shows not only that it does not work but that it is counterproductive. During our recent era of prohibitionist orthodoxy—since the 1960s with the UN conventions and the passage of the Misuse of Drugs Act 1971 in this country—we have seen, generation by generation, an increase in drug usage. I understand that it is now the case that about one quarter of people in their 50s and 60s have used drugs, one third of those in their 40s have used drugs, and more than half of those in their 20s and 30s have used drugs. Even during the period of prohibition, there has been a cultural normalisation of drug usage. There have been many unfortunate consequences of this—among them, I contend, an alienation from politics. Such large numbers of people as regularly use recreational drugs, and, certainly in their own belief, come to no harm, consider that the politicians who seek to ban their pleasures are authoritarian, ignorant and irrelevant and do not understand them. This is one factor that has tended to undermine people’s respect for the political class.

As the noble Lord, Lord Mancroft, reminded us, the costs are absolutely huge. The impact assessment is extraordinarily optimistic. It seems highly likely that one consequence of this legislation will be a misallocation of rapidly declining police resources that need to be harboured and used for top priorities in ways that will really be effective. Prohibition creates a free market in crime—it is a gift to international organised crime—and of course causes immense misery and human waste. I see no reason why this new extension of prohibition will not have the same effects.

The expert panel identified arguments on both sides. It identified merits in the course that the Government are pursuing, but it also identified a number of problems. Among the problems is the confusion that the legislation will cause. For example, there will be inconsistency between the regime created by the Misuse of Drugs Act and the regime created by this legislation. Why decriminalisation under one piece of legislation and for one range of drugs but not another?

Critics of the Bill will be tempted to accuse the Government of hypocrisy and irrationality when they look at Schedule 1, which exempts tobacco and alcohol. Tobacco is so lethal and, as the noble Baroness, Lady Hollins, reminded us, the number of deaths caused by alcohol is vastly greater than the number of deaths caused by controlled drugs. However, while the Government ban new psychoactive substances, they refuse to introduce minimum pricing for alcohol. What about sugar? I do not know whether sugar could be a psychoactive substance, but food is exempt and so presumably sugar is exempt. We have all heard of a sugar rush. Simon Stevens, chief executive of NHS England, described the habitual use of such quantities of sugar in the national diet as a “slow burn of poison”, and yet I do not think that any action is being

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taken on that. People will see the policy as arbitrary and see introducing a blanket ban as evidence that policymaking on the basis of evidence is being abandoned.

The Bill will be impractical. How on earth are people to know what a psychoactive substance is? The definition is very broad. In practice, we are going to be faced with the difficulty that very inadequate resources are available for forensic testing. The ACMD has belatedly been asked what its views are on this. There will be big costs to the criminal justice system as test cases are brought and the attempt is made to establish legally watertight definitions in this field.

Above all, though, the Bill will not work. Yes, head shops will be closed down and that will be pleasing to the Local Government Association—one understands its worries about anti-social behaviour on the part of some numbers of young people gathered round some head shops and the difficulties for overstretched trading standards officers. But the Government are missing the opportunity, if they would choose to take it, to mobilise head shop proprietors as useful advisers—people who might actually seek to help young people. That may seem an improbable notion to some noble Lords, but it would not have been beyond the bounds of possibility.

With the closing of head shops, we will no doubt see, as in Ireland, Poland and perhaps Romania, a temporary fall in the consumption of new psychoactive substances. But the experience, as noble Lords have said, of Ireland and Poland is certainly that subsequently, as consumers turn to online sources, consumption rose. My understanding is that young people in Ireland are now the heaviest consumers of new psychoactive substances in Europe. Those experiments that took place in Ireland and Poland were laboratory experiments from which the Government might have learnt. Evidently, they were an own goal, as my noble friend Lady Meacher told us the President of Poland admits. Instead of seeing that, the Government are copying that legislation.

The culture of this country has changed so far. I understand that it is now widespread in universities, particularly in academically elite universities, to use so-called smart drugs to improve people’s performance. In highly competitive situations such as in universities or the City, modafinil, Ritalin or varieties of amphetamines are routinely bought by significant numbers of people online. We may well see that chemical cognitive enhancement becomes almost as much a familiar practice as cosmetic surgery.

People will turn to buy their drugs online. They may go to China. Have the Government had discussions with the authorities in China about how they might seek to work with them to prevent our fears being realised? When mephedrone was banned, they had discussions with the authorities in China—production was immediately transferred to India, the quality deteriorated and consumption rose. Official corruption is widely pervasive in the countries from which these substances come. It will be impossible to inspect all the packages that come through, and I fear that we shall end up worse off than we have been.

I see that I have talked for too long, as I too often do. I will conclude by saying that I do not think that legislation in one country can work. There will be an

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opportunity to develop international collaboration on a constructive basis. Next year, the United Nations General Assembly will hold a special session on drugs. There is a tide of change, as other noble Lords have noted, away from criminalisation and towards treating drug abuse as a health issue and social issue rather than a criminal issue. Yet between 2009 and 2013 in the United Kingdom, 60,000 young people aged 20 and under were criminalised for possession of drugs. At the same time, the Home Office’s international comparative study, on which I congratulate it, concluded in 2014:

“Looking across different countries, there is no apparent correlation between the ‘toughness’ of a country’s approach and the prevalence of adult drug use”.

The Home Office was tiptoeing towards decriminalisation but then, come an election, the default position was to resort to a ban.

All of us need to think hard about this. The Government need to think again and I hope that in Committee we can assist the Government to think again and find useful ways to advise the elected House by way of amendments to this legislation.

5.58 pm

Baroness Hamwee (LD): My Lords, last week during the debate on the Queen’s Speech, I asked a question that was not facetious. I asked why, if it was as easy as a blanket ban, we had gone through such hoops over the past few years. The press coverage that has been given to this Bill has given the answer: it is not that easy, certainly as defined. Examples of psychoactive substances falling within the definition have been given.

We have heard about flowers today, and air fresheners have been mentioned—as have e-cigarettes, ironically. I have to say that if the Bill were to outlaw those smelly devices that hang from the rear-view mirrors of some minicabs, masking who knows what other aromas, I would be delighted. I must not be too facetious, but I will say that I am very relieved that the Home Secretary allows me my substance of choice, which is coffee. I am sure that it is addictive both physically, because I have felt withdrawal symptoms, and psychologically; I need that mug on my desk. But like chocolate, it affects my mood, and I did wonder whether to send for a bar of chocolate to present to the Minister at the end of the debate. My noble friend suggested that that would be improper.

This is about definition. We have talked about the Irish legislation, and one question I have for the Minister is about the difference in definition between this Bill and the Irish legislation. It is very similar, but it talks specifically of,

“stimulation or depression of the central nervous system … resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or … cause a state of dependence, including physical or psychological addiction”.

The term “significant” may be significant. I do not know whether the Minister is in a position to tell the House why that definition is not replicated, or if not now then perhaps when we put down an amendment to explore it at the next stage.

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But as noble Lords have said, definition is not everything, and it seems that in Ireland the closure of head shops has led to displacement to a more risky market. On the question of definition, I confess that I am baffled by the definitions set out in the schedule of exemptions, listing products that do,

“not contain any psychoactive substance”.

There is circularity in this and the Minister knows that I am concerned about it. If we need to express this more clearly, let us say so.

We also need to consider whether dosage should affect legality—a point made by my noble friend Lord Kirkwood. Let us look at how we express things. The Association of Convenience Stores has understandably asked for guidance in this area.

A term often used in debates in this House is “balance”. On this subject, like the noble Lord, Lord Patel of Bradford, I would focus on “proportionate”: a proportionate response to harm on the basis of evidence as to the whole context and the overall outcomes. I start from the view, which I think I share with the noble Lord, Lord Mancroft, that human beings with their frailties will always be human, and that they will, as they have always done, continue to take drugs. In other words, there will always be a market. So how do we get to the position of “least harm”? I suggest that we should look not just at Ireland and Poland but at states such as Oregon in the United States of America, which, in my terms at any rate, are progressive.

Some drugs we ban, and we know that prohibition does not work. Indeed, it may be the prohibition of classified drugs that has led to a demand for new psychoactive substances. People died from drinking moonshine when alcohol was prohibited. Some we regulate like nicotine and some we tax like alcohol. I risk becoming frivolous again, but if quinine is outlawed, are we to be driven to drinking neat gin without the tonic?

All this has led me to think that something like the New Zealand model deserves more attention. As I understand it, the model has not been abandoned and is still a work in progress. It incorporates the benefits of working from an evidence base as to harm with a thorough risk assessment, addresses the reliability of the product—quality control—and the reliability of the source, and avoids engagement with illegal suppliers. The noble Baroness, Lady Meacher, talked about the cost-effectiveness of that sort of model.

This is too serious a subject to ridicule, and because it is so serious we must not let the Bill be a knee-jerk political—in the worst sense—reaction to the problem. It is not a matter of being tough or soft on drugs. I do not see it in that dimension at all; it is far more complex. It is a great pity, with all respect—and real respect—for the Minister that the lead on drugs is not the Department of Health and that we are not using this opportunity to introduce different responses, as for instance in Portugal, with more emphasis on treatment. Addiction is not an appetite that can be turned on and off at will. I see the Bill as a lost opportunity. From these Benches, but not only these Benches I suspect, we will try to use the opportunities that we might be able to grasp in the forthcoming stages.

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Like others, I must mention education, but I mean something far more than formal school-based education, although I have to say that the unsatisfactory approach to PHSE that we have seen for too long is not encouraging. The noble Baroness, Lady Bakewell, referred to it as “informed awareness”, which is a very good way of looking at it. The Minister has acknowledged this, but he will understand the danger, which concerns many of us, of diverting both attention and resources from health and education to enforcement, and from the more important focus of enforcement—the point made by my noble friend Lord Paddick from both experience and informed imagination, if I can I put it that way.

I am baffled that the Government’s projection is of only five prosecutions a year. Like others, I am pleased that possession for personal use is not to be an offence. But is it realistic to ban social supply, to rely simply on police discretion, and to make it an offence to import for personal use? These points were made by noble Lords, Lord Rea and Lord Howarth. I was a member of the APPG, led by the noble Baroness, Lady Meacher. The work done was immensely informative and helpful. I was struck during the evidence sessions that significant numbers of young people were taking NPSs because, the NPSs being called legal highs, they were aware of the implications that illegal highs would give them and of the implications of collecting a criminal record. I am not suggesting that we should oppose what the Government are trying to achieve. I was also struck during those hearings that the name of a drug is no guarantee of its content, which can vary from week to week and from place to place.

I hope that we can take the opportunity—the amendment, which is very moderate, is already drafted—to look at the medicinal use of cannabis and other products that deal with neurological conditions. This House will clearly be interested in whether the Bill is too restrictive of research, as the noble Baroness, Lady Hollins, mentioned, and—I do not think this has been mentioned—in issues that we have addressed in other Home Office Bills, such as there being only a civil standard of proof for orders that will have significant consequences.

Like my noble friends, I endorse the purpose but not the means in this Bill. Culture is, indeed, stronger than law, so why not a full regulatory regime with proper assessment of harm? Legislation must be rational and trusted and command respect. That will guide amendments from these Benches. Clearly, from the debate today, that will not be only from these Benches.

6.09 pm

Lord Tunnicliffe: My Lords, I rise in the somewhat uncomfortable position of speaking from the Opposition Front Bench to support the generality of the Bill. I hope this will not be a role I shall have to take too often, since Oppositions normally disagree with Governments.

The Bill before us is quite simple. It is interesting that today’s debate has, in many ways, not been about the Bill. Today’s debate has been about the essence of drug policy. A number of noble Lords have said—I praise those who have said it, such as the noble Baroness,

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Lady Hamwee—that prohibition does not work. That is not the position of the law at the moment, of the Misuse of Drugs Act 1971, of the Government, of the Opposition, or of a majority of the general public. There is a belief that prohibition works and the law seeks to enforce those prohibitions. Debate on decriminalisation—that is what much of the debate has been—has been interesting, but it is not what we seek to do.

Baroness Meacher: I just want to raise the point, which has already been mentioned, that it is absolutely clear to everyone involved that across the world and certainly across Latin America, which has been most severely affected by prohibition, prohibition has not worked.

Lord Tunnicliffe: The debate will proceed smoothly if we recognise that I am in a minority. I repeat: prohibition is the policy of the Government and of the Opposition, and it is supported by the majority of people in this country. There have been many interesting speeches, but they have not persuaded either major political party or the general public that that is the way to go.

I put to noble Lords who have that belief that probably the worst place to start with decriminalisation is with NPSs. The whole problem with NPSs is that they are drugs of unknown consequence. The debate about alcohol—I entirely recognise the point that alcohol has serious negative effects, but, as a user, I have to say that it also has some really rather nice, positive effects—should be addressed through education. I entirely take the point brought out by the noble Earl, Lord Sandwich, and by my noble friend Lord Patel that prescribed drugs can have extremely serious effects when mismanaged, but the problem with NPSs and why they should be added to the prohibition we presently have is the unknown consequences. Ultimately, the goal of the manufacturers of these drugs is to create drugs every bit as potent as the presently proscribed drugs and to sell them to our young people, our old people, our hard-working people and our lazy people.

We support what the Bill is trying to do. It is intellectually extremely simple. It basically says that this is a race that is impossible to win, through which dangerous drugs are introduced to the markets, the merits of their impact are then determined and only then are they banned. It is a race that we simply will not win—the criminals will run faster. For that reason, we support the intellectual concept that we ban the generality and then make exceptions. Either you live with that concept and support the essence of the Bill, or you do not.

I have heard a number of speeches essentially saying that noble Lords do not support the essence of the Bill. I praise in particular the noble Lord, Lord Kirkwood, for his unambiguous statement that he will oppose the Bill. That is fair enough and I see where he is coming from; I just do not happen to agree with him and nor do the Opposition. I find it difficult to understand how he can say that after the speech of the noble Lord, Lord Paddick.

Part of the Bill could be interpreted as moving into the area of harm: the regulatory powers in Clause 3. Clause 3 allows the Government to add to the list

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substances which are harmless or negligible in their impact, as the noble Baroness, Lady Meacher, said. The Opposition cannot think of such substances or envisage such a situation, but clearly the Bill allows for it. It is arguable that providing that absolute ban and an absolute power in Clause 3 to add new substances to Schedule 1 should be better defined. I would like the Minister to explain further how Clause 3 will be used. What will be the criteria, and the process, for allowing a new substance to be added to Schedule 1? If somebody develops a safer form of alcohol with a different molecular structure, how would they set about getting it added to the list? I do not believe there is a safer form of alcohol; safer consumption is all about education. However, if a safer drug was developed and it came under the terms of the Bill and was introduced, what processes would the manufacturer of such a drug follow?

There are also absolutely proper concerns about research and industry, which were mentioned by a number of noble Lords, including the noble Baronesses, Lady Hollins, Lady Browning and Lady Meacher, and the noble Lord, Lord Kirkwood. The Government must go out of their way to convince us that those concerns are met. We have to recognise that research is not just about finding out what we do not know, but finding out what we do not know about places where we may not want to go, because you have to understand the environment in which a situation arises. You may be doing research that leads in a direction with which the Government feel uncomfortable, but that is no good reason to ban research that is better informing the debate about drugs. Research establishments, especially established ones with good ethics policies—I am sorry to be rather conservative about this—that know which research to do and how to do it, should have a pretty easy ride in getting their processes approved under Clause 10.

The other area on which I think there is consensus everywhere except in the Treasury is that the non-legislative thrust of the anti-drugs policies should be greatly strengthened. The £180,000 that the Government have almost boasted of spending in this area is pitifully inadequate compared with the problems we are addressing. Therefore, I hope that the noble Lord, Lord Bates, will be able to assure the House that the education and prevention programmes referred to in paragraphs 12, 13 and 14 of the Angelus Foundation literature and the education of professionals to stop prescribed drug abuse activities will be undertaken in parallel.

I hope that the Minister will also be able to assure me that the programmes outlined in the October 2014 government response to the new psychoactive substances review expert panel report still stand, given that that review was published under the coalition. Are the new Government conservative in tooth and claw, as it were? Will they stick to the non-legislative concepts that they promise to stick to in the response, and try to ensure that such efforts are every bit as vigorous as the legislative efforts?

The Bill takes a sensible, proportionate and progressive approach to enforcement. It has the concept of the notice, the order and the criminality. I welcome the fact, as other noble Lords have done, that it is not

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criminalising simple possession and use, but the problem with that flexible approach is that it needs to be co-ordinated between many local authorities, police forces and the National Crime Agency. I would therefore like an assurance from the Government that the right amount of effort will go into providing guidance to make it work at a local level, and that there will be proper consultation with people who understand this area about providing that guidance. We have heard a number of concerns about the consultation that has gone into the Bill.

On a more detailed point, I dutifully read the Bill, the notes and all the relevant paperwork; I almost feel that one should get a medal for that. But I am still unclear about the “not for human consumption” loophole, so I seek an assurance from the Government that that loophole, which has been used in the past, is properly covered by the Bill.

Finally, the noble Lord, Lord Farmer, raised the issue of international co-operation. The Government should assure us that there will be vigorous efforts to co-operate with our friends in Europe—at least, my friends in Europe—because the extraterritorial jurisdiction issues in this area are very complex, and the more co-operation we can have worldwide, the more effective we will be. But I come back to the fact that we believe in prohibition. We believe the loophole is a dangerous one, and we believe that this Bill is a sensible way of plugging it.

6.22 pm

Lord Bates: My Lords, this has been a debate of characteristic quality in your Lordships’ House. Immense expertise from around the House has been brought to bear on this issue—by people who have actually devoted their lives to trying to understand and tackle this issue of drugs. I was very struck by the words of my noble friend Lord Mancroft, who talked about the common approach shared by all sides of the argument about seeking to protect our children and the community from the effects of these harmful substances. In that we are united. How we go about that will be a matter of some debate as the Bill moves into Committee, should your Lordships choose to grant it a Second Reading, and the Government will welcome that.

Your Lordships’ expertise has raised some very thoughtful points. I summarise them as falling into two broad categories: those that look at the particular issue of psychoactive substances and those that relate to wider drugs policy. The noble Lord, Lord Tunnicliffe, touched on that when he said that effectively there were two debates going on here. The all-party group has done some excellent research and taken great evidence—I read its report and recommendations very carefully before this debate, as your Lordships would expect—and I think it is almost quorate in this debate, with the noble Lords, Lord Rea and Lord Howarth, my noble friend Lord Mancroft and the noble Baronesses, Lady Hamwee and Lady Meacher, all present and all making points.

Another view points to the growing threat of these new psychoactive substances. The early warning system in the European Union—among our European friends, with whom we are working closely on these issues—

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identified 24 new substances in 2009; in 2010 there were 41; in 2011, 49; in 2012, 74; and in 2013, 81. We are on an exponential rise in the number of these new substances. As my noble friend Lady Browning made clear, this amounts to playing Russian roulette.

I found one of the most telling contributions to be that of the noble Lord, Lord Kirkwood, because he came at it from the perspective of pharmacology. I hope that does not impinge on his street cred among his colleagues. He talked about the challenges of dosage and of manufacturing these compounds. Things are coming into this country and being identified at the moment which people are consuming when they have absolutely no understanding of how they have been produced or what is being put before them. People are looking at that and saying, similarly to my noble friend Lord Farmer, who talked about families, that things must be done. That approach is not lacking in intellect.

There is a growing number of substances so, effectively, we have a choice before us. Do we go down a route where we have base legislation in the Misuse of Drugs Act and then the Government come forward with 500 individual measures and temporary banning orders on banned substances, but their manufacture is unshown? It is almost like a Whac-A-Mole game in the arcade; once one is stopped, another pops up somewhere else. Or do we go down the route of a blanket ban? I know that that is not supported in many of the contributions that were put here, but let me offer some of the places where it is supported.

The Home Affairs Select Committee took a lot of evidence, and a lot of the people who gave evidence to it also gave evidence to the all-party group on the misuse of drugs. The Select Committee said in its summary, first, that:

“We conclude that there is currently an epidemic of psychoactive substances and it is highly likely that the creation of new psychoactive substances will continue to increase in the future unless immediate action is taken”.

It went on to recommend that,

“new legislation, brought in to address the problem of ‘legal highs’, is specific and focused. The law must ensure that the police and law enforcement agencies can take action comprehensively against those who sell new psychoactive substances and remove the reliance on existing legislation which is ill-suited to comprehensively tackling this problem. The legislation needs to allow sellers of new psychoactive substances to be prosecuted for an offence which is equivalent in sanction to that of the Misuse of Drugs Act”.

In addition to the Home Affairs Select Committee, support comes from: the expert panel appointed by Norman Baker, as was mentioned; the similar panel appointed by the Scottish Government to look into this, which came to the same conclusion; the Health and Social Care Committee of the National Assembly for Wales; several countries, including Ireland and New Zealand, which were mentioned; and each of the main political parties in England and Wales at the election. I am simply saying that it is not an inconsequential body of opinion and we are, rightly, trying to follow the evidence in legislation. I suggest that even if it is not compelling in some areas, that is quite a comprehensive body of evidence.

I want to address some of the specific issues raised.

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Lord Howarth of Newport: Before the Minister departs from what he has just been discussing, I would be grateful if he would answer one point. He suggested that there is a binary choice: either we carry on attempting to swat these new psychoactive substances as they arrive in our midst or we have a blanket ban. However, there is a third option, which is selectively to legalise and strictly regulate certain drugs of which society has long experience, which are less dangerous and which society on the whole knows how to deal with. Is that not an option that ought to be considered? It is a market solution. People would be interested in and attracted to taking those drugs if they were looking for some psychoactive experience, but if they found that they could get satisfaction from a range of carefully selected, legalised substances, they would be much less interested in buying what the online merchants were offering them. It would be a market way to address the problem.

Lord Bates: I hear what the noble Lord says and once again I appreciate the passion that he feels about the topic and his knowledge of it, but in a sense that debate went before this piece of legislation. We looked at that. I do not want to run through the whole list again but other people, including the Home Affairs Select Committee and the expert panel, all looked at that and came to the view that that was not the case. That is a point of wider drug policy. It is perfectly legitimate to continue to have that debate, but not in relation to the Psychoactive Substances Bill now before us, which is seeking to tackle a very specific problem in a way that we believe is in keeping with the expert opinion that we have had.

I recognise that the noble Lord, Lord Patel of Bradford, and many others—I keep saying this—have an immense level of expertise. I should, in mentioning expertise, say that I am very grateful to be assisted on the Front Bench by my noble friend Lady Chisholm, who also brings immense experience to this, from her understanding both of drugs and of their health effects. The noble Lords, Lord Rosser, Lord Patel, Lord Kirkwood and Lord Rea, asked about the Advisory Council on the Misuse of Drugs. Its 2011 report called on the Government to explore legislation for new psychoactive substances. The Home Office set up a six-month policy review, with a primary focus on looking at how law enforcement powers could be strengthened. Ministers informed the ACMD in October 2014 of the Government’s plans to develop the blanket ban approach. The Home Secretary has written again to the ACMD, and welcomes its views on how we strengthen the UK’s forensic capacity and capability to support the implementation of the legislation in 2016. The ACMD continues to provide expert scientific advice which is greatly valued by the Government. The Misuse of Drugs Act 1971 will remain the cornerstone of our response to dangerous drugs and the ACMD will continue to have the central statutory role in assessing the harms of specific new psychoactive substances and provide advice to Ministers.

Lord Mancroft: I am most grateful to my noble friend for giving way. In the course of what he was just saying, he talked of the Misuse of Drugs Act being a cornerstone. I understand that, but the Misuse of

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Drugs Act’s primary purpose was to restrict the supply of certain drugs—heroin, cocaine et cetera—and it has completely and utterly failed to do that. It has not restricted the supply; we have a massive oversupply. You could say that that is because time has passed, but the fact is that the Act has failed. If that is the cornerstone, and we are moving on to another stone in the same pavement, it is completely logical to ask why this new stone would succeed where every previous measure has consummately failed.

Lord Bates: My noble friend asserts that the Misuse of Drugs Act has failed. You can of course observe and point to the availability and prevalence of drugs within society and draw some conclusions, but one cannot make a direct comparison because, had the Misuse of Drugs Act not been in place in 1971, perhaps that situation and the situation that we are trying to address might be a whole lot worse.

What can you do in government? You can look at issues. We have parents, including Maryon Stewart, and the Angelus Foundation coming to us and urging us to take action and clamp down on these drugs. We read in our regional and national newspapers of horrendous situations—young lives lost and blighted. We see new drugs come on to the market branded as “plant food” and “not fit for human consumption”, as if that gets the sellers off the hook of their moral responsibility for what they are selling. Are we supposed to say “No, we do not take any action”, simply because there is an availability of drugs in society? Well, the Government do not take that view and nor did the expert panel, the Home Affairs Select Committee or any of the mainstream political parties in their manifestos. I am sure that this debate will go on, and it is good that we do this. I will now try to address some more of the particular points raised.

The noble Baroness, Lady Bakewell, and my noble friend argued the case and called for a more regulatory approach. As I indicated in my opening remarks, the expert panel considered the regulatory model along with others in operation in different jurisdictions, and concluded that it presented significant practical difficulties. Trying to define what we mean by low-harm substances would be a legislative and scientific minefield. For many substances, the evidence of chronic harm can take years to emerge, as can dependence potential. It is not clear how the harms could be properly assessed to medicine standards without animal and human trials. Do we really want to contemplate further animal testing for these purposes? I also remind the House that there have been no applications for licences in New Zealand—further evidence, if it were needed, of the difficulties of going down the regulatory route.

The question of definition was raised by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Patel. The Bill is designed to capture substances supplied for human consumption that have a psychoactive effect. Its aim is to capture substances that are not currently controlled under the Misuse of Drugs Act 1971 but that, as with all drugs, carry health risks when misused. Many new psychoactive substances are still legal due to the speed at which they are produced, with manufacturers inventing new substances by tweaking chemical formulas, as I already mentioned.

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The point about criminalising young people was raised by the noble Baroness, Lady Hollins, again from her deep experience in this area. I assure her and other noble Lords that there is no question of criminalising the users of psychoactive substances. As proposed by the expert panel, the Bill is focused on the trade in these substances: those who manufacture, import, distribute or sell new psychoactive substances. The Bill contains no offence in relation to simple possession—a point welcomed by the noble Baroness, Lady Meacher. As she suggested, for young people tempted to use new psychoactive substances our focus must be on prevention and, where necessary, treatment. I look forward in Committee to setting out in more detail the comments in that expert panel report on the work that will need to go hand in hand with education and health prevention available to people.

The noble Baroness, Lady Hollins, argued in favour of the Irish approach. The Bill is closely modelled on that approach. I will come back to that specific point about the Irish definition.

The impact on research was raised by the noble Baronesses, Lady Meacher and Lady Hollins, the noble Lord, Lord Kirkwood, and my noble friend Lady Browning. A number of noble Lords sought reassurance about the impact of the Bill on legitimate research. I can indeed offer such reassurance. Research that does not involve the human consumption of a psychoactive substance would not be caught by the provisions of the Bill. Where research has reached the stage of clinical human trials, Schedule 1 to the Bill exempts investigational medicinal products from the scope of a psychoactive substance. This includes active substances being used in such trials. If further latitude for research were needed, the regulation-making power in Clause 10 enables us to exclude specified activities from the ambit of the offences.

The noble Lord, Lord Rosser, raised the issue of keeping the list of exempted substances under review. He asked about the process for ensuring that the list of exempted substances in Schedule 1 is kept up to date. We believe that the list will be relatively stable. Indeed, Ireland has not needed to amend its equivalent list in the five year since its legislation was enacted. I should add that we are not legislating here for a regulatory regime for new psychoactive substances; there is no provision in the Bill to enable the licensing of so-called low-harm substances, and the regulation-making power in Clause 3 is not designed for that purpose.

The noble Lord, Lord Rosser, and my noble friend Lord Farmer asked about the implementation of the Bill. We are working with the police, the National Crime Agency and the Border Force on implementation, including the development of appropriate guidance, and we will extend those discussions to the Local Government Association—another organisation that is actually being supportive of the Government’s approach here. We are also ready to work with other bodies, such as the Association of Convenience Stores, to provide bespoke guidance for their members. A very good point was made about what we are doing to engage with countries that lead in supplying these things, such as India and China. I do not have an answer to that, but I shall write to noble Lords about that in further correspondence.

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I mentioned the cross-European approach. The noble Earl, Lord Sandwich, asked whether we could be more specific about when the ACMD is due to report. NICE and the Medicines and Healthcare Products Regulatory Agency have published advice to clinicians on how to help people to withdraw from medicines to which they are addicted. Public Health England has produced advice to commissioners on how to assess the need in their area for specialist services to help people to withdraw from medicines to which they are addicted.

I am conscious that there are a number of issues that I have not had time properly to address here, and I shall be very happy to write a follow-up letter to begin a discussion with colleagues, and perhaps to arrange, ahead of Committee, meetings between interested Peers and some of the experts from whom we have taken our opinion. I am very happy to give an undertaking to do that. With those assurances—

Lord Kirkwood of Kirkhope: The Minister has been very solicitous in answering the legitimate questions that have been asked. It would help me enormously to prepare mentally for Committee if he could give me some idea of what he would consider success to look like over the next five or 10-year period, should this Bill become an Act.

Lord Bates: There is some of that in the impact statement, although I accept that it may not be as much as noble Lords would like. However, I am very happy to see whether we can go back and see what extra we can produce in answer to that very specific question. I shall write or provide further comment in Committee. But in the light of those remarks and those commitments—

Lord Patel of Bradford: I have just one question about the Department of Health and Public Health England. Many noble Lords have said that they would prefer to see this legislation under the health remit. I just cannot see where Public Health England and the Department of Health have been engaged or involved in taking this Bill forward, and it would be useful to have a view on that.

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Lord Bates: That is a very fair point, because what we are talking about here is the legislative response, and what we are passing into law here is in relation to the Psychoactive Substances Bill. That is an element of the stick that is part of government policy, but it cannot be set aside from the carrot—if I can express it that way—set out in the expert panel’s report, which said that the health elements must be equally strong and robust. I have not dwelt on them as much because that is not the subject of the Bill, but it is the subject of government policy. I would certainly be very happy to set that out in greater detail for other noble Lords.

Lord Winston (Lab): I apologise for interrupting at the end of the debate. I was held up at Imperial College, which is why I did not put my name down to speak. When I was chairman of the Science and Technology Select Committee some years ago, we looked intensively at the medicinal uses of cannabis. One of the pieces of evidence was very compelling and enabled us to think about rather permissive legislation. It was that a number of people who had medical conditions, such as glaucoma and multiple sclerosis, took cannabis, which was not prescribed, to relieve their symptoms. They were very clear that they did not want a high. They did not want to get intoxicated. They monitored how much they were taking so that they were in complete control. Will the Minister clarify the position? Possession of those drugs would still be legal, but any attempt to obtain them would involve those people in an illegal act, would it not?

Lord Bates: I am very cautious in responding to the noble Lord, who has a well-deserved reputation for knowledge in these areas. I will write. He will be reassured to know that other noble Lords are planning to bring forward an amendment in Committee to allow a more substantive debate on that point, which they are perfectly entitled to do. I assure the noble Lord that at that point I will outline the Government’s position in more detail.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 6.46 pm.