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House of Lords

Tuesday, 30 June 2015.

2.30 pm

Prayers—read by the Lord Bishop of St Albans.

Oaths and Affirmations

2.36 pm

Lord Tordoff took the oath, and signed an undertaking to abide by the Code of Conduct.

Eurostar: Passengers with Pets


2.36 pm

Asked by Baroness Sharples

To ask Her Majesty’s Government what discussions they have had with Eurostar about allowing passengers to travel with pets.

Lord Gardiner of Kimble (Con): My Lords, Defra has not had any recent discussions with Eurostar on this issue. Government does not impose any obligation on transport companies to carry pet animals; it is a commercial decision on the part of those companies as to whether they offer this service to their customers. Eurostar does offer carriage to recognised assistance dogs, and works closely with the Animal and Plant Health Agency to make sure that all the relevant import requirements are met.

Baroness Sharples (Con): My Lords, passports for pets has been 100% successful, has it not? I was involved in that from the beginning, with my noble friend Lord Soulsby. Why, oh why, will Eurostar not take pets? You can take your dog on the sleeper to Scotland, and all the ferries take dogs, so why not the Eurostar?

Lord Gardiner of Kimble: My Lords, as I say, this is a matter on which commercial companies make their own decisions. I looked at Eurostar’s website, and it is conscious of and concerned about safety in particular, although it is very keen to help with assistance dogs. I acknowledge the part my noble friend played in passports for pets. We now have an EU pet travel scheme, which last year carried over 170,000 dogs, cats and ferrets.

Lord Snape (Lab): My Lords, if it is possible to take a pet dog through the Channel Tunnel using the euroshuttle trains, why is it not possible to take them on Eurostar? Is the Minister aware that Eurostar is the only train operating company that forbids the carriage of pets? Finally, it will not do to say, “It’s a commercial decision”. Surely, in an area such as this the Government ought to be making representations to the company concerned.

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Lord Gardiner of Kimble: My Lords, I would be very surprised if Eurostar is not listening now and understanding the exchange we are having. In point of fact, today, carriers have to be approved by the Animal and Plant Health Agency, which requires the necessary facilities to be in place to check every pet travelling with its owner for compliance with the pet travel rules. However, I of course hope that Eurostar is listening.

The Countess of Mar (CB): My Lords, are Her Majesty’s Government happy that van-loads of puppies should be imported from eastern European countries with apparently fake vaccination and worming documents? If they are not, what are they doing about it?

Lord Gardiner of Kimble: My Lords, we will not tolerate any illegal passage, whether under the pet scheme or under the Balai directive for sale or rehoming. I think that the noble Countess may have in mind the recent report from the Dogs Trust which resulted in the Chief Veterinary Officer writing to authorities in Lithuania and Hungary, among other countries, reminding them of their duty to ensure that pet passports are completed correctly and that the welfare of dogs intended for sale is safeguarded.

Lord Anderson of Swansea (Lab): My Lords, now that the Government have either sold off, or will shortly sell off, their shares in Eurostar—the family silver—why should Eurostar pay any attention to what the Government have to say?

Lord Gardiner of Kimble: My Lords, Eurostar is a commercial operator. As far as I know, it is trading successfully, and I am very happy if it continues to trade in the private sector.

Baroness Parminter (LD): My Lords, given the increase in pet travel, can the Minister say how many spot checks the Association of Port Health Authorities has undertaken in the last year to ensure that the pets coming in are only those that comply with the regulations?

Lord Gardiner of Kimble: My Lords, all carriers are audited by the Animal and Plant Health Agency and the results show that they are doing a good job. Last year, only 0.9% of those checked through the audit process were found to be non-compliant with the entry rules. If there are any further details, I will be in touch with the noble Baroness.

Baroness Farrington of Ribbleton (Lab): My Lords, will the Minister accept my assurance that he should be careful when dealing with the issue of ferrets? We had a ferret called Rikki-Tikki-Tavi, which belonged to my son, and she enjoyed trouser legs. It is very important that people take care. A former colleague of mine called Derek Hatton started a ferret appreciation society in Wigan. I had to warn him that I would turn up with said ferret, and that he had to beware of her interest in going up trouser legs.

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Lord Gardiner of Kimble: The noble Baroness has given us a splendid reason why one should be extremely cautious of ferrets. Last year 68 ferrets came in under the pet scheme, and I very much hope that everyone has taken note of what the noble Baroness said about trousers.

Baroness Ludford (LD): My Lords, at the risk of bringing this down to the boringly serious, perhaps I may ask about Eurostar. There are supposed to be direct trains from Marseille and Lyons but everybody has to get off at Lille with all their baggage—and presumably their pets, if they have them—to go through passport and baggage checks, which takes about two hours. As we are trying to resist further runways at airports, should we not be doing everything we can to foster direct rail travel from the continent to the UK? When is that problem going to be solved?

Lord Gardiner of Kimble: My Lords, we are trying to ensure that all the requirements of the pet scheme are adhered to, because we do not wish to see the arrival of any diseases. That is why our requirements are as exacting as they are, and, as a result, we have remained rabies-free for all these years. Of course, direct travel is part of the modern way of life, and certainly of contacts within Europe. However, as far as the Question is concerned, Eurostar has made its commercial decision, and that is up to it.

Lord Grantchester (Lab): My Lords, in June 2014 the BBC made a programme called “The Dog Factory”, highlighting the problems experienced by people buying puppies from unscrupulous breeders in the Republic of Ireland. Can the Minister update the House on enforcement measures between the United Kingdom and the Republic of Ireland, and can he confirm that the situation was rectified in the changes made to the pet travel scheme on 29 December 2014?

Lord Gardiner of Kimble: My Lords, we take very seriously the illegal movement of puppies from farms, wherever they may be. Ireland has recently passed its own legislation relating to the welfare of dogs, and I am very happy to write to the noble Lord, and place a copy in the Library, so that the update that I think he would like to have is available to him.

NHS: Whistleblowing


2.44 pm

Asked by Lord Desai

To ask Her Majesty’s Government what is their policy on whistleblowing in the National Health Service.

The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con): My Lords, the Government are committed to improving openness in the NHS and ensuring that whistleblowers are considered an asset and receive proper support. The Freedom to

  30 Jun 2015 : Column 1930 

Speak Up

report sets out principles and actions to help create a culture change in the NHS. It calls for local accountability, with system regulators providing national oversight and guidance. We will publish our consultation response on a package of measures arising from the review and next steps shortly.

Lord Desai (Lab): I thank the noble Lord for that Answer, but is he aware that there is considerable anxiety among junior doctors, especially among those from a black or ethnic-minority background, that their career prospects may be harmed or they may even find their contract terminated if they are whistleblowers? Will he promise to take a look into that problem?

Lord Prior of Brampton: The noble Lord makes a very important point. There are many junior doctors from BME backgrounds who do indeed feel that it is difficult to raise concerns. One recommendation in Sir Robert Francis’s report is that every NHS organisation should have a local freedom to speak up guardian, which I hope will help. But whatever we do to change the law or codes from the GMC and others, it will not replace the need to have an open, transparent and learning culture in all NHS organisations.

Baroness Walmsley (LD): My Lords, would it not be more likely that such discrimination as mentioned by the noble Lord, Lord Desai, would be stamped out if there were more black and ethnic minority members of staff at senior levels in the NHS? Is he aware that the proportion in London NHS trusts of those from a BME background is only 8%, compared to 45% in the general population and 41% among NHS staff?

Lord Prior of Brampton: The noble Baroness has probably read The “Snowy White Peaks” of the NHS, which sets out very clearly for all to see the really shocking lack of representation of people from BME backgrounds at senior levels of the NHS. This is an absolute priority. NHS England has appointed Yvonne Coghill to look at all the racial inequality issues, and she and NHS England have my full support in their endeavours.

Lord Harris of Haringey (Lab): My Lords, I declare an interest as having two family members who work in the NHS. Further to the answer that he has given, will the Minister reflect on the fact that many trusts have contracts in which staff are warned that if they bring the trust into disrepute, they are likely to face disciplinary action? This has a stifling effect on whistleblowing and people raising issues of legitimate public concern with the media. Will he comment on that practice and what is going to be done about it?

Lord Prior of Brampton: In Robert Francis’s report, Freedom to Speak Up, he specifically mentions—I think it is in principle 13, from recollection—that there should be no such clauses in NHS contracts unless it can be demonstrated that there is indeed a true public interest. In any severance package in which there is a gagging clause of any kind, CQC is entitled to inspect those agreements during its inspections.

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Baroness Wall of New Barnet (Lab): My Lords, the duty of candour has made a big difference in hospitals to staff owning up if there is a difficulty or they have made a mistake in any part of their service. Does the Minister accept that there is a relationship between that and whistleblowing and with the guardians that are in existence in hospitals, such as in my own in Milton Keynes, where they are designated by the people in the department and so are trustworthy in the sense of how they are elected or selected? Does the Minister not agree that the duty of candour is making a difference to the whole culture of the health service being open and honest?

Lord Prior of Brampton: The noble Baroness is absolutely right. The duty of candour, which puts an obligation on organisations to show candour, is making a difference. I congratulate the GMC and the NMC, which have spelled out clearly in their codes that the professional duty of candour is equally important.

Baroness Masham of Ilton (CB): My Lords, if one was going to whistleblow, who would one contact?

Lord Prior of Brampton: There are a number of organisations that the noble Baroness might wish to contact, but most important is to raise the matter first in the local organisation. All organisations should have their own whistleblowing procedures, and that is the right way to raise concerns. If any individual finds that not to be satisfactory, the right way to proceed is through the Care Quality Commission, which has a dedicated hotline in its service centre in Newcastle.

Baroness Brinton (LD): My Lords, which takes priority: duty of candour or an employee’s contract with their NHS trust where they are gagged?

Lord Prior of Brampton: The duty of candour should clearly take precedence. It should be seen in the context of an agenda to improve patient safety in hospitals; if we are not open about our mistakes, we will not learn from them.

Lord McFall of Alcluith (Lab): My Lords, the experience of whistleblowers in the NHS is not for the faint-hearted, with lip service paid to internal hotlines. To ensure the maximum protection for genuine whistleblowers with no retribution whatever, is it not time that a legal duty of care towards them is imposed on NHS trusts?

Lord Prior of Brampton: The Government have taken a lot of action to help protect whistleblowers. I think that there is a limit to the law in this regard and the changing culture is more important. The Small Business, Enterprise and Employment Act 2015 places an obligation on NHS employers not to discriminate against people who have blown the whistle or raised concerns. I believe strongly that the law has a role to play in this but that we need a fundamental change of culture in the NHS.

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Lord Hunt of Kings Heath (Lab): My Lords, the noble Lord rightly expects a fundamental change of culture among NHS bodies, but does he agree that one way in which that could be helped would be if Ministers welcomed criticism from chief executives and leaders of those bodies of unrealistic expectation on the part of Ministers and of there being too few resources? Does he agree that such leaders are stamped on for making their views known, which is simply not conducive to encouraging openness in their own organisations?

Lord Prior of Brampton: The noble Lord makes a good point. If one looks back at the history of Mid-Staffordshire, one sees clear evidence that the priorities of that organisation were too skewed towards hitting financial targets and meeting other extraneous objectives such as becoming a foundation trust. The message to all NHS organisations should be that patient safety and quality of care come first.

Gaza Strip: Rafah Crossing


2.52 pm

Asked by Lord Hylton

To ask Her Majesty’s Government whether they intend to call for the stationing of UN military observers in the Gaza Strip and the creation of a UN agency to oversee the safe passage of materials essential for reconstruction and access through the Rafah Crossing.

The Earl of Courtown (Con): My Lords, the immediate priority is for the Israelis and Palestinians to agree a long-term, durable ceasefire for Gaza that prevents a return to conflict. In the mean time, we are providing support to the UN-brokered reconstruction mechanism which is facilitating the import of construction materials into Gaza and encouraging Egypt to show maximum flexibility on opening the Rafah crossing.

Lord Hylton (CB): My Lords, is it not time that rather more imagination was used with regard to Gaza? Does the Minister agree that independent military advisers would prevent the endless arguments that we have had in recent years? Similarly, impartial supervision of incoming construction materials and their end uses would speed up reconstruction and reduce the harmful effects of the current blockade. Is it not true that the Rafah crossing is essential for urgent medical cases and, much more widely, for access to the outside world for the people of Gaza?

The Earl of Courtown: My Lords, I carefully note what the noble Lord has said, but we hope that the Israelis and Palestinians will agree to this durable ceasefire for Gaza which will prevent a return to conflict. In the mean time, we will continue to support the UN through its various mechanisms. That includes the UN special envoy on the Gaza reconstruction mechanism, which is facilitating the import of construction materials into Gaza. The noble Lord also mentioned the Rafah crossing. It is important that those areas are opened so that the conditions in Gaza can be improved.

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Baroness Warsi (Con): My Lords, what is Her Majesty’s Government’s view on the United Nations Human Rights Council report on potential war crimes during the conflict in Gaza last year? Does the Minister accept that accountability in previous conflicts is likely to assist in preventing future conflicts? In the light of that, how does he now view the Foreign Secretary’s statement in July last year when the United Kingdom abstained on the setting-up of this report by saying that it would,

“complicate the process by introducing unnecessary new mechanisms”?

The Earl of Courtown: The noble Baroness is quite right concerning accountability: there must be a robust process of accountability given the heavy civilian death toll. That includes acts committed by Hamas and other militant groups too. We are pressing Israel to demonstrate accountability for its actions during this conflict. The noble Baroness also mentioned war crimes. Both sides of the conflict have put themselves into a position where perhaps war crimes have taken place. We of course need to keep a careful watch on this matter.

Lord Turnberg (Lab): My Lords, is the noble Earl aware that while Egypt is busily destroying homes on its border with Gaza to try to prevent the smuggling of arms to Hamas, Israel is allowing through the Erez crossing more than 500 trucks—with 15,000 tonnes of goods, including medical aid, benzene and building materials—every day? Is he further aware that while Egypt has stopped the passage of anyone through the crossing into Egypt, 1,200 people a day are coming across into Israel for medical care or business purposes? Should we be pressing Egypt to do the same?

The Earl of Courtown: The noble Lord makes a good point about approaches to the problems in this area. We are concerned by the restrictions at the Rafah crossing and are urging the Egyptians to show maximum flexibility in reopening it. We are also calling on Israel to fulfil its obligation by lifting its restrictions in order to ease the suffering of ordinary Palestinians and to allow the Gaza economy to grow.

Lord Wallace of Saltaire (LD): My Lords, we have already seen Fatah lose control of Gaza to Hamas, and we now see signs that Hamas is threatened by more radical groups within Gaza which might, indeed, include supporters of IS. Given the cycle of violence between Israel and Gaza—and it is a cycle of violence, with both sides playing roles in it—do we not need something more urgent and imaginative to avoid what would be a disaster for the already poor relations between Israel and both entities of Palestine?

The Earl of Courtown: The noble Lord makes a good point. The humanitarian situation in Gaza is deeply concerning, so we are urging key donors to disburse the Cairo pledges. We are encouraging the Palestinian Authority, as the noble Lord said, to engage more in Gaza and to move forwards on reconciliation. We are also continuing to press Israel to do more on exports, power, movements and access. As I said earlier, we are also urging Egypt to show more flexibility at the Rafah crossing.

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Baroness Morgan of Ely (Lab): My Lords, as of April this year, of the $3.5 billion promised by donors for the reconstruction of Gaza, only 26% of the money has been released. Not one of the 19,000 destroyed homes has been rebuilt. Can the Minister explain what pressure the Government are bringing to bear on the donors to release the promised funds, and can he confirm whether the UK has honoured its commitments to Gaza on this subject?

The Earl of Courtown: My Lords, the noble Baroness refers to the Cairo pledges. The United Kingdom has honoured 80% of its pledges and has 20% outstanding. That will be spent over the next financial year and will concentrate on job creation, getting people into work, which we all know will help their economy. As for the other countries and their pledges, pressure is being put on them to spend more money in that area.

Lord Ashdown of Norton-sub-Hamdon (LD): My Lords—

Lord Davies of Stamford (Lab): My Lords—

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, we have just had a spokesman from the Labour Benches ask a question, so if we are taking turns, it would normally be the turn of the Lib Dem Benches.

Lord Ashdown of Norton-sub-Hamdon: My Lords, I am most grateful. I think I heard the Minister say that “perhaps” war crimes have been committed. We cannot leave it as “perhaps” war crimes have been committed. Either they have or they have not, and surely Her Majesty’s Government and others should now be taking steps to ensure that they understand whether or not that is the case.

The Earl of Courtown: At the particular point when answering that question, I could not find the notes in my folder. As I understand it, war crimes have been committed.



3 pm

Asked by Baroness Jones of Whitchurch

To ask Her Majesty’s Government what steps they are taking to ensure the effective monitoring of childcare places by local authorities.

The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con): My Lords, the department’s statutory guidance is clear that local authorities should report annually to elected council members on how they are meeting this duty and make the report available and accessible to parents. We know that the childcare market is thriving. The latest figures just published show that 99% of four year-olds and 94% of three year-olds are accessing the Government’s free childcare offer.

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Baroness Jones of Whitchurch (Lab): My Lords, I thank the Minister for that reply. He will have seen the recent Family and Childcare Trust report entitled Access Denied. It highlights a huge disparity in childcare places across England. For example, 49 local authorities have a shortage of free places for two year-olds in deprived areas, and while some local authorities are proactively managing the shortfall, others are not even bothering to collect the statistics, so the offer and the quality vary considerably from place to place. How can we be sure that future expenditure will be targeted at the families who would benefit the most from this money when we seem to be faced with a lack of nursery places in the most deprived areas?

Lord Nash: The noble Baroness is quite right to say that the recent report is concerning—and we are concerned. Local authorities of course must publish certain information, but only to a limited extent, so the new Bill will go further to ensure that we have better information. I can assure her that we are very focused on deprived areas, and indeed there has been a substantial increase in full daycare places in those areas over the past five years.

Lord Laming (CB): My Lords, following on from the question of the noble Baroness, does the Minister agree that this requires much more than putting a roof over the head of any child who has had a terrible start in life? It requires a robust and effective care plan to be devised for each child in order to help them overcome their difficulties. We have only a very few years in which to get that into operation.

Lord Nash: I agree entirely with the noble Lord, who is very experienced in this area. We all know that these are the most important years in a child’s life, but I am encouraged that of the providers who have been inspected under the early years inspection framework, which is a more rigorous one, we now have some 85% of them being found to be good or outstanding, up from 69% five years ago.

Baroness Pinnock (LD): My Lords, does the Minister agree that the problems of undercapacity in the childcare sector will not be resolved unless hourly rates for the free places are substantially increased? The hourly rate is dependent on the vagaries of the early years funding element in the revenue support grant to local authorities. We need to address both concerns if the rates for free places are going to be increased, as well as problems around capacity in the childcare sector if the increase to 15 hours a week is to be provided.

Lord Nash: The noble Baroness is quite right to be concerned about these points; that is why we have a funding review and a task force, and will be entering into a consultation. However, we have to strike a balance between value for money and quality.

Baroness Massey of Darwen (Lab): My Lords, the Minister will be aware of the Select Committee report on affordable childcare. The report indicates that many parents find the provision of the current childcare system difficult and complex. What would the Minister advise a parent to do when they are seeking high-quality childcare for their child?

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Lord Nash: The system can sometimes be complex for parents; that is why we are conducting this review. However, holiday care and after-school childcare have expanded substantially in the last few years, and it is important that we continue this flexibility.

Lord Sutherland of Houndwood (CB): My Lords, the Bill before the House could well expand educational expenditure in this area to over £6 billion annually. What steps are the Government taking to be sure that this money is well spent, and that it benefits those most in need in terms of increasing their educational opportunities?

Lord Nash: We will be looking at this closely in the coming review. We have of course been extremely focused on providing for those most in need through the early years pupil premium, the pupil premium, universal free school meals, free childcare for 15 hours for two year-olds, and of course expanding the three and four year-old offer from 12 hours to 15 hours.

Baroness Andrews (Lab): My Lords, has the Minister seen the devastating report that came out earlier this week from the Delegated Powers Select Committee? If he has, what is his response to its conclusions that the absence of any detail in the Bill and the inappropriate delegations of considerable significant powers make it practically impossible for this House to have a meaningful debate on it? Does he not think that he owes it to the House to enable us to do our job in terms of the proper scrutiny of a very important Bill that we would all like to support?

Lord Nash: The noble Baroness is quite right; I have seen that report, and I am very grateful for it. We will have the opportunity to debate it in great detail tomorrow in Committee, when I will be saying more about that. We will be considering the report extremely carefully and making any necessary appropriate amendments.

The Earl of Listowel (CB): My Lords, is the Minister aware of the decline in numbers of the highly regarded nursery schools attached to primary schools? Is he looking at how those numbers can be increased in order to develop capacity in high-quality early years provision?

Lord Nash: I am not entirely sure that the noble Earl is right about declining numbers; I will clarify that for him. I think that provision has in fact been increasing, and we have been making every effort to expand that high-quality provision. We know that it is of the highest quality and tends to have higher-quality staff. We have reduced the bureaucracy to enable primary schools to open nurseries, and we have now allowed free school applicants to apply to open nurseries attached to their primary places. We have been working with a number of schools that are already doing this to learn from the practice so that we can share that practice with other primary schools that want to open nursery provision.

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Bread and Flour Regulations (Folic Acid) Bill [HL]

First Reading

3.07 pm

A Bill to amend the Bread and Flour Regulations 1998 to require flour to be fortified with folic acid.

The Bill was introduced by Lord Rooker, read a first time and ordered to be printed.

Psychoactive Substances Bill [HL]

Committee (2nd Day)

3.08 pm

Relevant documents: 1st Report from the Delegated Powers Committee, 2nd Report from the Constitution Committee

Clause 3: Exempted substances

Amendment 15

Moved by Lord Norton of Louth

15: Clause 3, page 2, line 9, leave out “or vary”

Lord Norton of Louth (Con): My Lords, Clause 3(2)(a) permits the Secretary of State by regulation to amend Schedule 1 in order to add or vary any description of substance, while Clause 3(2)(b) permits the Secretary of State by regulation to remove any description of substance added under paragraph (a). I appreciate that any regulation made under this provision has to be by statutory instrument, subject to affirmative resolution. I appreciate that paragraph (b), which, on the face of it, appears to be a Henry VIII power, is limited by the fact that the Minister can seek to utilise it only to remove a substance that the Minister has added under paragraph (a). A Minister cannot seek to remove a substance that is exempted under the measure as enacted.

However, I have a concern about the provision under paragraph (a) to vary the description of any substance. This concern is shared by the Constitution Committee of your Lordships’ House, and I declare an interest as a member of that committee. In its report published at the beginning of last week, the committee draws attention to the fact that the power to vary any description of substance could presumably be employed to narrow the description of such substances, thereby expanding the range of substances brought within the ambit of the Bill’s provisions.

The power to seek to vary the description of substance is subject to it being exercised by a statutory instrument but, given the breadth of the power and the absence of any definition of what is meant by varying a description of substance, that may be deemed an inadequate safeguard. Exercising the power by statutory instrument may be necessary but it may not be sufficient.

This is compounded by the fact that, as the Constitution Committee notes, the power to add, remove or vary the description of substances is not constrained by any explicit statement of the purpose or purposes for which the power may be exercised. Any constraint

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would have to be inferred from the scheme of the Bill but that may be difficult given that, as the committee notes,

“the Bill adopts an ostensibly neutral conception of what should constitute a (non-exempted) psychoactive substance”.

There is no notion of harm embodied explicitly in the Bill, so one cannot adumbrate clearly the range of substances upon which its provisions have effect. Given the wide power conferred by paragraph (a) to vary any description of substance, some amendment to the clause to make clear the meaning of vary would seem appropriate, along with a statement of the purpose or purposes for which the power may be exercised; in short, making it clear what it is and when it would be appropriate to use it.

If the Minister were to indicate that the Government would be prepared to consider amending the Bill along those lines, that would allay concerns about the broad and undefined powers given by this clause. Without such an assurance, the prudent course would be to remove altogether the provision to vary any description of substance. That would leave the Minister with the capacity to add by regulation and to remove by regulation anything added. That would offer at least some clarity in a way that we do not have at the moment. One either defines what is meant by varying a description of substance or one removes the term from the Bill. The amendment, by providing for removal, is designed to concentrate the Minister’s mind. I beg to move.

Baroness Hamwee (LD): My Lords, my noble friend and I have Amendments 20, 21, 47 and 48 in this group. First, I welcome the introduction of this issue in Committee by the noble Lord, Lord Norton of Louth, which, as he said, was considered by the Constitution Committee. We are lucky to have committees which manage to just about keep ahead of the game in looking at legislation and helping the rest of the House in raising such issues. It is a very important point.

My amendments are in two pairs and both regard the regulations. One of each pair provides that when the Secretary of State consults before making regulations, as well as consulting those whom she considers to be appropriate, she should specifically consult the Advisory Council on the Misuse of Drugs both with regard to exempted substances under Clause 3 and excepting certain actions in regard to offences under Clause 10. The second amendment in each pair provides that she must also make a report to Parliament on the consultation. I have added that assuming that that is what would happen but I seek the Minister’s confirmation.

A number of people commenting on this Bill have said that the ACMD seems to have been sidelined when it should be upfront and the centre of what we are doing. I hope that this small point—it is not a small issue, but a small insertion—is something that the Minister and the Secretary of State would be glad to confirm as proper to be in the Bill.

3.15 pm

Lord Howarth of Newport (Lab): My Lords, we should be grateful to the noble Lord, Lord Norton, and to the noble Baroness for drawing our attention to

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these points. The Delegated Powers Committee and the Constitution Committee of your Lordships’ House had first done so, and it is unsatisfactory that there is so little clarity about the power to vary. We ought always to aim—certainly in this context—for as much legal certainty as it is possible to create.

I am glad that the noble Baroness, Lady Hamwee, has tabled amendments in this group that would amend Clause 10. This clause, which provides powers for the Secretary of State to create exceptions to offences, seems to be quite extraordinarily open-ended. I am rather surprised that the Constitution Committee did not draw attention to that as well. It leaves the Secretary of State free to retire from the field—to alter the specification of offences in all kinds of ways, subject only to the need to consult and the need for affirmative regulations. I submit that that is not a satisfactory way for the Government to legislate. Clause 10, if not Clause 3, does seem to create Henry VIII powers.

There is a broader constitutional point, which I think my noble friend Lady Bakewell made at Second Reading, when she noted that our normal constitutional practice—our normal tradition in this country—is to leave citizens free to do things unless they are specifically forbidden. The tenor of the Bill is to make everything forbidden, unless it is accepted in the field of the use of psychoactive substances. The House should be careful in permitting that kind of exception to constitutional tradition and practice. The policy had better work; it needs to be justified in its practice, because it is a somewhat objectionable principle.

The noble Baroness, Lady Hamwee, has tabled an amendment to require the Secretary of State to consult the Advisory Council on the Misuse of Drugs to report before exercising these different powers. It would be helpful if the Minister would clear up for us what consultation Ministers and their officials had with the Advisory Council on the Misuse of Drugs in the preparation of this report. It is, after all, the statutory duty of the ACMD to keep under review the situation in the United Kingdom in respect of drugs. However, we have been led to understand, possibly erroneously, that the first time that the Home Secretary sought the advice of the ACMD in drawing up this legislation was on 26 May, when she sent a letter asking for its advice on how to achieve better forensic services and to establish a comprehensive scientific approach to psychoactivity for evidential purposes. That was only two days before the Bill was laid before Parliament. It would appear, as the noble Baroness suggested, that the ACMD has been sidelined in the preliminaries to the legislative process.

It is by no means the first time that the advice of the ACMD has been rejected by Ministers of various Governments. Its recommendations in respect of the classification of magic mushrooms, cannabis, MDMA, khat and now of nitrous oxide have all been rejected by the Government. It was not always the case that the recommendations of the ACMD were so routinely ignored. Back in the 1980s, when we faced the crisis of mounting levels of heroin addiction and the spread of HIV and of AIDS, the ACMD’s advice was taken, to the great benefit of improved policy.

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When the UK Drug Policy Commission chaired by Dame Ruth Runciman reported in 2000, and again when it published An Analysis of UK Drug Policy in 2007, it warned of the lack of research underpinning policy development, and that policymakers,

“operate partially blind when choosing effective measures”.

It would appear that that may still be the case in 2015. The recommendations of the Runciman commission were dismissed, as were the recommendations of the Global Commission on Drug Policy dismissed by the Home Office in 2011, as were, in 2012, the recommendations of the Home Affairs Select Committee that a royal commission should be established. However, policy should be made not on a basis of political expediency, but in response to evidence. It should be made not on a basis of anxiety about what the tabloids might say but on the basis of the advice of independent experts.

Professor Nutt, the chairman of the ACMD, was sacked essentially for telling the truth about the relative dangers of alcohol and tobacco vis-à-vis cannabis and ecstasy. Mephedrone was classified before the Government had received the advice of the ACMD, but following a huge campaign by the Sun newspaper and an endless series of “meow meow” stories, most of which turned out to be false when the facts were properly established. There were many resignations from the ACMD at that period. People in the front line of enforcement—the noble Lord, Lord Paddick, may be able to tell us something about this, if he chooses to do so—found that the vacillations and vicissitudes of policy made life very difficult for police officers in the front line of enforcement in Brixton or elsewhere.

Therefore, what advice does the Minister follow? What does he see as the role of expert advisers, and to what extent has the ACMD been consulted in this context? Certainly, I hope that he will answer the questions articulated by the noble Lord, Lord Norton.

Baroness Hamwee: My Lords, as we are in Committee, I would like to ask the Minister a question which I told the Bill team I would ask him, but which I forgot to include in my previous remarks. Why do the offences clauses, up to and including Clause 10, not receive a mention in the Home Office’s human rights memorandum, except a reference in the summary at the start of the memorandum? One would have expected that, having created new offences, they would have deserved some attention in that document.

Lord Kirkwood of Kirkhope (LD): My Lords, I make a very short intervention simply to support this group of amendments ably moved by the noble Lord, Lord Norton, and in particular to support the plea of my noble friend Lady Hamwee for a better explanation vis-a-vis the advisory council—a point made eloquently by the noble Lord, Lord Howarth of Newport. When I read the Bill, I was astonished to find that the advisory council had been sidelined to the extent that it had. If it is to be sidelined in future, this is an extremely important change.

Speaking for myself, I will be looking very carefully at what the Minister says in reply to the previous speeches made on Amendment 47 because, if he is not careful, he might find another plethora of amendments

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being tabled at later stages to restore the advisory council to its rightful role, which it has discharged with distinction in my view since the 1971 Act. This is not an insignificant moment for me. If the Minister can persuade the Committee that these are simply incidental circumstances indicating that the advisory council has been put to one side for the temporary purposes of this Bill, that is one thing. However, if this is a systematic attempt to reduce its significance in future policy-making in this important area, I think noble Lords will want to return to this during later stages of the Bill.

Lord Blencathra (Con): My Lords, I will make just a brief point on the amendment in the name of the noble Baroness, Lady Hamwee. I would be surprised and appalled if the advisory committee was not one of the consultees in the Bill. But I am not sure it is necessary to actually mention it. The Secretary of State is under an obligation to consult such persons as appropriate, and clearly, the advisory committee is one of the top ones on the list to be consulted. If the Home Office failed to do so, in my experience we would be in court on a judicial review within minutes and the Secretary of State would lose the case for failing to consult an appropriate body.

It is one thing having a duty to consult, but that is quite different from being under an obligation to carry out all the advice the committee can give. It is perfectly legitimate for the Government to consult the advisory committee but then reject some of its advice after due consideration. If it is not given due consideration, again, that is a case for judicial review. While I agree that the committee must be consulted, I am not sure it is really necessary to put that in the Bill. Perhaps the Minister will clarify that in his response.

Lord Rosser (Lab): We very much support the points that have been made by the noble Lord, Lord Norton, and the Constitution Committee, and we await with interest the Minister’s response to them. I thank the Minister for his letter of 15 June, which followed up on the Second Reading debate, and in particular on questions that I and three of my noble friends had asked about the role of the Advisory Council on the Misuse of Drugs in relation to the Bill.

We are a party to Amendment 20, spoken to by the noble Baroness, Lady Hamwee, which relates to Clause 3 on “Exempted substances”. Clause 3(3) says that before any regulations to amend Schedule 1 are made,

“the Secretary of State must consult such persons as the Secretary of State considers appropriate”.

The purpose of the amendment is to add the reference to the Advisory Council on the Misuse of Drugs. I note the point that the noble Lord, Lord Blencathra, has just made but one could interpret the Bill as saying that there is no statutory requirement for the Secretary of State to consult anyone because it is open to them to conclude that they consider no person appropriate, despite the importance or significance of amending Schedule 1 and getting any such decision right. No doubt the Minister will comment on the point that in reality, under Clause 3(3) the Secretary of State could not get away with consulting nobody at all and that it obliges them to consult at least somebody. That is the

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point that the noble Lord, Lord Blencathra, made and I would like to hear a very specific response, on the record, as to exactly what Clause 3(3) means in that regard.

Referring to another point made by the noble Lord, Lord Blencathra, the Minister’s letter of 15 June 2015 states:

“The ACMD is required by statute to be consulted before any amendment by Order in Council is made to Schedule 2 to the Misuse of Drugs Act 1971”.

The principle of the ACMD being required by statute to be consulted is thus not new, and I do not see how it can be argued that somehow it is unnecessary to put it in the Bill, given that the Minister’s own letter refers to that already being a requirement. If the Minister is going to oppose Amendment 20, I hope he will explain the reasons for doing so in some detail. In his letter he says that the Government are,

“ready to consider carefully any recommendations the ACMD may have about other aspects of the Bill”.

Has a response been received from the ACMD? Has it said whether or not it wishes to be consulted as per the terms of Amendment 20, to which we are a party? What difficulties does the Minister believe there would be if the ACMD had to be consulted as per this amendment, and who exactly might the “such persons” referred to actually be?

Finally, to come back to the point I made earlier and which the noble Lord, Lord Blencathra, has already made, does the Minister think it right that the Secretary of State could apparently make a change to Schedule 1 without taking expert advice? That is what Clause 3(3) apparently enables the Secretary of State to do, unless the Minister is going to tell me that I have misunderstood it.

3.30 pm

The Minister of State, Home Office (Lord Bates) (Con): My Lords, I am grateful to my noble friend Lord Norton of Louth for introducing this amendment. Perhaps I may structure my response by first putting on the record some important comments which might be helpful to the House and then, at the conclusion of those remarks, seeking to address some specific issues and questions which have been raised.

The Constitution Committee drew to the attention of the House the fact that the power to vary Schedule 1 could be exercised so that something which, on the enactment of Schedule 1, is an exempted substance ceases to be exempted. A similar point was raised by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. The Constitution Committee also commented on the absence of a statement of purpose or purposes for which the Clause 3 power may be exercised. At this point, I would put that in the context of assuring my noble friend that the Constitution Committee has concentrated our minds. I think that the report was published last week, on 18 June, and we will be considering it carefully. We will have a full response to the committee ahead of Report.

As we indicated in our delegated powers memorandum, the list of exempted substances needs to be robust and kept up to date so as not to unintentionally criminalise the production, supply and so on of psychoactive substances that may legitimately be consumed for their

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psychoactive effect. Following on from one of our debates last week, I can assure the noble Baroness, Lady Hamwee, that the regulation-making power indeed enables substances to be added to Schedule 1. To take an example, alcohol is both a substance and a description of a substance. It may also be necessary to vary an existing entry: for example, if the regulations mentioned in paragraphs 2 to 5 of the schedule relating to medicinal products were revoked and replaced with new regulations. While we expect the list in Schedule 1 to remain reasonably stable, the regulation-making power affords the necessary flexibility to make required changes relatively speedily should it be appropriate to do so.

We have deliberately drafted this regulation-making power so that it will not be possible to exercise it to remove any description of a substance that is contained in Schedule 1 on enactment. But I would be wary of further narrowing the scope of the regulation-making power, as Amendment 15 seeks to do. I stress that the power is subject to the affirmative procedure, so any regulations would need to be debated and approved by both Houses. I will of course reflect on this debate before responding formally to both the Constitution Committee’s views and the Delegated Powers Committee’s report.

Amendments 20 and 47 would require the Home Secretary to consult the Advisory Council on the Misuse of Drugs before making regulations under Clauses 3 and 10. The noble Lord, Lord Rosser, spoke in support of these amendments and has added his name to Amendment 20. I begin by saying that the Home Office continues to greatly value the scientific advice provided by the Advisory Council on the Misuse of Drugs. Following its advice over the last few years, we have controlled more than 500 new psychoactive substances under the Misuse of Drugs Act 1971. The advisory council will continue to have its central role in assessing the harms of specific drugs, including new psychoactive substances, for control under the 1971 Act and in providing advice to Ministers.

In drafting Clauses 3 and 10, the Government included a requirement for the Home Secretary to consult with such persons as she considered appropriate prior to making any regulations: for example, regulatory bodies and relevant experts. This was to account for the fact that the Government may need to consider different types of substances and so wanted to tailor their consultations to organisations with specific expertise. For example, if it was thought necessary to change the description of food, we would want to consult the Food Standards Agency. In this example, the advisory council would not necessarily have much to contribute to any consultation. None the less, as noble Lords will have seen from the Explanatory Notes to the Bill, the ACMD was included as an example of the type of consultee the Government had in mind. That being the case, I am happy to take away Amendments 20 and 47 to consider the matter further in advance of Report.

The Government are, again, supportive of the principle behind Amendments 21 and 48, but I question whether we need to specify such a requirement in the Bill. There are many examples on the statute book of requirements to consult before a Minister exercises regulation or order-making powers. It is taken as read that the outcome of any consultation would be published

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—a point mentioned by the noble Lord, Lord Kirkwood —alongside the making of the relevant regulations or order. We do not need to clutter the statute book with express duties of this kind. There is a joint working protocol between the advisory council and Home Office, which commits us to open and transparent dealings. The advisory council routinely publishes its advice to the Home Secretary and I fully expect it to continue to do so. We will encourage other bodies responding to any consultation on these regulations to do likewise.

Any regulations made under Clauses 3 and 10 will be made by the affirmative resolution procedure. It is standard practice to publish an explanatory statement alongside draft regulations. Such a statement would, among other things, summarise the outcome of the consultation. Therefore, one way or another, Members of both Houses will be able to consider the consultation responses in conjunction with the draft regulations to be made under Clauses 3 or 10. In the light of this explanation, and on the understanding that I will give a sympathetic consideration to Amendments 20 and 47, I hope that my noble friend Lord Norton would feel able to withdraw his amendment.

I now turn to some of the specific points raised. On Clause 3(3), I agree with the noble Lord, Lord Rosser, that it is difficult to conceive of circumstances where the Home Secretary would reach the conclusion that there were no appropriate persons to consult. We have had some excellent work by the Delegated Powers Scrutiny Committee and the Constitution Committee on the Bill. Were there not to be an adequate and full demonstration of the experts who had been consulted, that particular measure—which might be before the House on an affirmative basis—would clearly be in for a very difficult ride. In reality of course, the Government would not seek to do that.

The noble Lord, Lord Kirkwood, made the point that he was very concerned about whether this was some kind of attempt to downgrade or sideline the ACMD, which I understand. The council does of course have a statutory duty under the Misuse of Drugs Act, which is very important, and it was consulted. It has been looking at the area of psychoactive substances. I cannot remember the exact date of that but I am happy to get details. One of its recommendations was that the Government ought to consider and explore a legislative response to this. I do not say this in order to unearth a previous relationship, but it was Norman Baker, the Liberal Democrat Home Office Minister, who decided to put this out to an expert panel.

To make a serious point, the purpose there was not to deal with a question on the science, which is just one component of this. Another part of it is then to say, “How do we deal with the science?”. Whereas we have an eminent group of scientists on the ACMD, the expert panel is particularly constituted so that it has expertise on enforcement at local authority level; forensics; prosecution, from the Crown Prosecution Service; medical science, of course, with three members of the ACMD on the expert panel; social sciences; an international dimension, with drug addiction; and, very importantly, education and prevention, with representatives from Mentor UK and DrugScope. So it was constituted to address a different stage in the problem, the issue having been identified earlier.

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I want to deal with the points that have been made, although I shall provide a fuller response to the Constitution Committee. My noble friend Lord Norton of Louth made a particular reference to the term “vary”. It might be helpful if I add some words to the record at this stage on that point. “Vary” is given its natural meaning in the Bill: the ability to amend individual definitions within Schedule 1. It does not stretch to changing the principle of an exemption, nor to removing it. Schedule 1 exempts groups of substances; the ability to vary the definitions is important to future-proof the legislation against regulatory changes, which may change how particular substances are legally defined. It may be that a definition in the Bill is varied in the way in which it narrows its scope. However, this would be the case only if the scope of the underlying regulation was also narrowed. A similar approach has been taken in Ireland—without wanting to reopen that particular canard at this stage. Since the passing of the Criminal Justice (Psychoactive Substances) Act 2010 in Ireland, they have not needed to make any amendments to their exemption list. We therefore anticipate a stable list.

The noble Baroness, Lady Hamwee, mentioned a point that she had raised with officials and which we had tagged under the Clause 10 stand part debate. These offences are modelled closely on those provided by the Misuse of Drugs Act 1971, which has been in force for 45 years. Although it was enacted before the Human Rights Act 1998, the compatibility of the 1971 Act with the human rights convention has been tried and tested thoroughly in both domestic courts and the European Court of Human Rights. By following closely the existing law and statute, we have endeavoured to draft offences that we believe are compliant with the ECHR. In view of this, and to avoid restating old arguments in the memorandum that are already well accepted by the courts, the decision was taken that the ECHR compliance of these offences did not require rehearsing in the memorandum. Instead, the memorandum focuses on those issues that may properly be described as new or significant. We look forward to any observations on these and other provisions from the Joint Committee on Human Rights; in the usual way, a full response to the committee’s report will be possible once it has been received.

With those assurances, which I reiterate are on important issues which we undertake to consider very carefully and come back to on Report, I hope that the noble Lord will withdraw his amendment.

Lord Howarth of Newport: I listened carefully to what the Minister said about the Government's consultation with the Advisory Council on the Misuse of Drugs on the subject of psychoactive substances, and I think that I heard him tell the Committee that the ACMD had urged the Government to do something about psychoactive substances. An expert panel, which is not the same as the ACMD, was then set up. It would be helpful if the Minister could tell the House, in response to the points that I put to him in my contribution, what dealings the Home Office had with the ACMD on this legislation on psychoactive substances, following receipt of the advice from the expert panel, up until the letter that the Home Secretary sent to the

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ACMD on 26 May. Given that the ACMD has a statutory duty to keep under review the situation of the UK in regard to drugs, surely it would have been appropriate—and I should have thought a statutory requirement—to seek its views as to the wisdom of the policy that the expert panel recommended and on which the Government were proceeding to legislate. What consultations took place on this specific Bill?

3.45 pm

Lord Bates: I think I have tried to deal with that important point. Effectively, it is a discussion about which came first, the chicken or the egg. On the exact phraseology—I am just trying to read and, being a simple man, I can do only one thing at a time; it is difficult to multitask at the Dispatch Box—my understanding was that the advisory committee used a particular phrase, which was not as strong as the noble Lord perhaps suggested. However, it was an invitation to the Government to explore legislation, which they then chose to do through a multidisciplinary panel along the lines I outlined earlier.

Clearly, there will be a point—once we have come back and published the Bill—where the Home Secretary, quite rightly, wants to explore further. The letter of 26 May to which the noble Lord referred, and which I do not have in front of me, sought the scientific advice of the ACMD on how we use forensics to determine what is a psychoactive substance. It was a particular task, which I hope demonstrates that there is a healthy relationship between the Home Office and the ACMD, which is not of course uncritical. It has a very important role to play. The fact that the chair and other members of that committee formed part of the group is important.

Let me just read out a point that has been highlighted for me. However, since October 2014, when the Government published their response to the expert panel’s report and Ministers wrote to the ACMD, we have been open and transparent about our plans to develop the blanket-ban approach, now encapsulated in the Bill. The Home Secretary has written again to the ACMD and we look forward to receiving its views on how we can strengthen the UK’s forensic capacity and capability to support the implementation of the legislation. I think that is broadly what I said the letter was about and what the response was. If there is any difference, I will write to the noble Lord.

In the mean time, I would be grateful if my noble friend would consider withdrawing his amendment.

Baroness Hamwee: My Lords, it is appropriate to mention that, as well as the two committees to which the Minister referred, the Secondary Legislation Scrutiny Committee also takes an interest in consultation on regulations. I was a member of it for quite a long time and we frequently asked officials to go back to different departments because an Explanatory Memorandum gave very little information about the consultation that had been undertaken and the responses to it. That probably got into my DNA so I did not even realise it was there in prompting me to raise this point. I would not threaten the Minister with the Secondary Legislation Scrutiny Committee but it will certainly be on top of this if the Explanatory Memorandum is inadequate in this respect.

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Lord Norton of Louth: My Lords, I am grateful to my noble friend the Minister. I shall look forward to further discussions with him, and I know the Constitution Committee will be very interested in his response to its report.

I listened with great interest to what my noble friend said. On defining the term “to vary” he offered a description but not necessarily a compelling argument for why a description should not be in the Bill. I appreciate that the power to vary will be subject to the affirmative resolution, but that places a burden on the House to establish criteria for assessment when the instrument is brought forward, whereas it may provide better discipline for the criteria to be established in the Bill. We can say no when the instrument is brought forward, but there may be a case for it not to be brought forward in the first place to make it clear to the Government what should and should not be permissible. So I am not necessarily persuaded that the Government should be given the essentially unrestricted power in Clause 3. One can have a little too much flexibility.

However, I look forward to discussing this further with my noble friend and, in the mean time, beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendments 16 to 22 not moved.

Clause 3 agreed.

Amendment 23

Moved by Lord Paddick

23: After Clause 3, insert the following new Clause—

“Possession of controlled drugs

(1) The Misuse of Drugs Act 1971 is amended as follows.

(2) Omit section 5(1) and (2).

(3) After section 5 insert—

“5A Measures in respect of possession of controlled drugs for personal use

(1) Where a person is detained on suspicion of having committed an arrestable offence and is found to be in possession of a controlled drug falling within Schedule 2 (Class A drugs) in circumstances which do not constitute an offence under section 3 (restriction of importation and exportation of controlled drugs) or section 4 (restriction of production and supply of controlled drugs), a senior officer or a local authority may require the person to attend a drug treatment programme or drug awareness programme.

(2) The Secretary of State shall by regulations define “drug treatment programme” and “drug awareness programme” for the purposes of this Act.

(3) Regulations made under this section must be made by statutory instrument.

(4) A statutory instrument under this section may not be made unless a draft of the instrument has been laid before, and approved by resolution of, both Houses of Parliament.””

Lord Paddick (LD): My Lords, I shall speak also to Amendment 24. These amendments are tabled in my name and that of my noble friend Lady Hamwee.

First, there has been a bit of confusion in the editing of the amendment. Subsection (1) of proposed new Section 5A should refer to all drugs falling within Schedule 2, not, as suggested in the brackets, “Class A drugs”. Schedule 2 refers to Class A, Class B and Class C controlled drugs.

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Amendment 23 amends the Misuse of Drugs Act by removing Section 5(1), which states that it is illegal to possess a controlled drug, and Section 5(2), which states that it is an offence to possess a controlled drug. It adds a new Section 5A to the Misuse of Drugs Act requiring those arrested for offences to be referred to a drug treatment programme or a drug awareness programme if they are found to be in possession of controlled drugs at the police station. The effect of the amendment is to bring controlled drugs, as defined by the Misuse of Drugs Act, into line with substances that are controlled by this Bill, where simple possession of psychoactive substances is not a criminal offence. This amendment would have the effect of decriminalising the possession of psychoactive substances under the Misuse of Drugs Act and is similar to Amendment 39 which is proposed by the noble Lord, Lord Howarth of Newport, and the noble Baroness, Lady Meacher.

This amendment also allows that when someone is in police custody for an offence and it becomes apparent that drugs may be behind the criminal behaviour, the person can be referred to an education programme, a drug awareness programme or a drug rehabilitation programme. It allows the Secretary of State by regulation to define a drug treatment programme and a drug awareness programme for the purposes of this Bill. Amendment 24 is simply a consequential amendment to Schedule 1.

At Second Reading, I said that making possession of drugs illegal is not a deterrent, and the Government appear to agree with me to the extent that they are not seeking to make possession of new psychoactive substances illegal under this Bill. It is claimed that proportionality is the reason for not doing so. A proportionality argument can be made for possession of controlled drugs as well. First and foremost, there are millions of people in the UK who continue to take drugs even though they are illegal. Why do they do so? One of the reasons is because the law is in disrepute as far as those it was intended to protect are concerned. Secondly, criminal sanctions do not appear to have any impact on drug use. The Home Office’s 2014paperDrugs: International Comparators states:

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

UK drug laws appear to have failed to impact on the level of national drug use. The UK has the second-highest lifetime amphetamine and ecstasy use, the second-highest cocaine use and the fourth-highest lifetime cannabis use in Europe.

Release examined 21 jurisdictions where possession of all or some drugs had been decriminalised, and there was no increase in drug use. In the most notable example, Portugal, the Home Office notes that there has not been a lasting or significant increase in drug use there since decriminalisation in 2001. Whether simple possession of drugs is a crime or not appears to make very little difference. The Government are content not to criminalise possession of the substances covered by the Bill, some of which are—and some new substances certainly could be—far more harmful than some of the drugs covered by the Misuse of Drugs Act. For the sake of consistency, clarity and credibility, simple possession of any psychoactive substance should not

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be an offence. Some will be concerned about such a move, and I myself long resisted calls to legalise drugs. However, I have been convinced by the evidence from Portugal.

These amendments go on to suggest that where someone commits an offence, whether it is antisocial behaviour as a result of being intoxicated by drugs or committing an acquisitive crime to feed a drug habit, and it is found that they are in possession of a controlled drug, they may be referred to an education programme if they have been reckless in their use of drugs, or to a drug treatment programme if they are addicted. There are already well-established practices within the police of giving conditional cautions, where someone is not charged with a criminal offence provided that they comply with the conditions imposed on them. That conditional caution mechanism for the substantive offence for which they have been arrested could provide the incentive for those who are willing to change their behaviour. This is, in essence, the Portuguese model, as I understand it—an approach that focuses on dissuasion.

This amendment has significant other benefits. As with substances covered by the Bill, it would deprive police officers of the power to stop and search people they suspect of simple possession of controlled drugs. At Second Reading, I pointed out the impossible position that the police would be put in if the Bill were implemented without a change in the Misuse of Drugs Act. The police could not possibly be able to tell whether the psychoactive substance they suspected the person to be in possession of was covered by the Bill or by the Misuse of Drugs Act, one for which they have a power to stop and search, the other for which they do not. This amendment deals with that difficulty.

Stop and search is a very contentious tool that the police have used disproportionately against black and minority ethnic young men in particular. In 56% of cases of stop and search by the police in London in 2013-14, the reason the officer gave for searching was “for drugs”. Admittedly, some of those stop and searches may have been for suspected drug dealing, but in my own professional experience they would have been very few. Last week there was discussion in the media about the growth of knife crime in the capital, and it has been reported that the Commissioner of Police for the Metropolis has suggested that stop and search may have to increase again as a result. In the same 2013-14 period in London, only 9% of stop and search was targeted on offensive weapons. Freed from the burden of stop and search for simple drugs possession, the police could focus on more serious crime such as drug dealing and knife crime.

As the noble Lord, Lord Howarth of Newport, alluded, I have some experience of de facto decriminalisation of cannabis in the London Borough of Lambeth, where I was the police commander. In 2001, for a year, the then Commissioner of Police, now the noble Lord, Lord Stevens of Kirkwhelpington, agreed a 12-month pilot scheme where no one would be arrested for simple possession of cannabis, subject to a few exceptions such as possession on or near school premises. The official report by the Metropolitan Police Authority into that scheme is still available on the internet.

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Some 83% of local people supported the scheme. There was a 19% increase in arrests for dealing in class A drugs. Contrary to press reports, there were fewer drug tourists, fewer incidents of drugs in schools and a saving of police time, which was diverted into tackling more serious crime that was of more concern to local people. The pilot was so successful that the procedure to allow officers to seize and warn for simple possession of cannabis was extended nationally. It also prompted the then Home Secretary to reclassify cannabis as a class C drug—a decision overturned by a new Labour leader a few years later. No wonder the public have no faith in drugs classification.

4 pm

Since then, the police procedure nationally for dealing with small amounts of cannabis for personal use has evolved. In addition to having the cannabis seized and a warning given, those caught are given a fixed penalty for disorder—a specific penalty notice provided by statutory instrument, which was presumably agreed to by this House. Simple possession of cannabis has effectively been decriminalised with the agreement of Parliament.

The wording of my amendment may not be perfect, and I have since learned about the FPN approach, which may be a better way forward. However, the principle is sound and it is this: we should have a consistent approach to all psychoactive substances by decriminalising simple possession. Even if the Government do not feel that they can go that far, at least simple possession of drugs only as harmful as or less harmful than cannabis—a class B drug under the Misuse of Drugs Act 1971—should be decriminalised. I beg to move.

Baroness Meacher (CB): My Lords, we will return to the subject of decriminalising possession of all drugs a little later in relation to other amendments, and I will speak then. I applaud the noble Lord, Lord Paddick, for this amendment. This is an incredibly important issue and I want to say a few words about Portugal.

The crucial issue that I think the Government have to consider is whether it is more important to reduce social use. For example, if an alcohol policy results in rather more people having a glass of wine or beer on a Saturday night, does that really matter? I do not think so. What really matters is addiction, and a policy that reduces addiction is, for me, a good policy.

As I understand it from all the research—of which there has been a lot—into the Portuguese decriminalisation of possession and use of all drugs, there has been a bit of an increase in social use in Portugal, but under the scheme fewer young people are addicted to any drug. As I understand it, the right-wing political parties were against decriminalisation when it was introduced, but Dr Goulão, the wonderful doctor who spearheaded this reform—he is terrific; I know him very well and he is splendid—is thrilled that all political parties in Portugal now support the policy. It is true that Portugal is going through terrible economic issues, so I am not sure exactly what is happening to the policy right now, but it has been proved that a policy of decriminalisation wins the support of all political parties once it is seen in action, and it is all about addiction.

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My question to the House and to the Minister is: why are fewer young people in Portugal now addicted to all drugs, not just one? I believe that it is to do with the psychology of young people. They like to be cool. When I was at school I used to break the school rules. I thought it was a terrific thing to do, although I do not think that I broke the law. If all young people have to do is get a spliff to break the law, they think that that is cool. In Portugal it is not cool. Why is that? It is because if you are referred to a dissuasion commission, you see a psychiatrist, a social worker or a lawyer who determines whether you are addicted. You are then referred for treatment. That is not cool; it is a mental health treatment, and it is not cool to have a mental health problem.

I believe that Governments of all political persuasions should think about the psychology of young people when they think about drugs policy, because it will only be when we get inside the minds of young people that we might come up with a policy that makes sense and works.

Lord Blencathra: My Lords, as someone from the highlands of Scotland, I like to be cool as well, but I suspect that it is a slightly different interpretation.

I was not quick enough on my feet to ask this of the noble Lord, Lord Paddick, before he sat down. I readily acknowledge his great practical expertise in these matters and I acknowledge my own ignorance. Is there a definition, in statute or in case law, of how much is a “small amount” of drugs for personal use? One needs to know how much a person could get away with by claiming, “This is just for my personal use, guv”. Or is it rather like the cross-channel ferries, where people can come back with 10,000 cases of cigarettes and lots of booze and claim that they are a heavy drinker and smoker, and possibly get away with it?

The noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, quote favourably from the Portuguese experiment, and there are some debatable results there. I would also refer them to the trendiest, most socialist and liberal country in the EU—Sweden. Sweden has a zero-tolerance policy on drugs and, admittedly, a big back-up self-harm programme behind it. Although one can quote Portugal favourably, one can also quote Sweden and its no-tolerance policy favourably. I hope that noble Lords have seen the reports from Sweden, as I have, and if I am wrong, I am happy to be reminded and amended later on.

Lord Howarth of Newport: My Lords, like the noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, I too have been impressed and encouraged by the evidence emanating from Portugal. Just before I add a few words on the subject of Portugal, I would say to the noble Lord, Lord Blencathra, that if he looks at the incidence of drug-related deaths in Sweden, he will find that they are exceptionally high. People are ignoring these draconian policies that the Swedes do indeed operate, but not with happy consequences. One of the reasons is that criminalisation and the panoply of very severe penalties in operation in Sweden deter people from seeking treatment and help. Personally, I think that that is ill advised.

The Portuguese took another route when they faced a real crisis of drug abuse at the beginning of the century. They consulted an expert panel, which recommended

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the depenalisation—I think that that is perhaps the term—of small amounts of drugs for personal use. Again I say to the noble Lord, Lord Blencathra, that under the Portuguese legislation, those “small amounts” of each drug are very precisely defined, so it can be done in legislation. At the same time, they invested very significant resources in treatment, education, programmes of social reintegration and the disruption of supply. It was a coherent strategy that appears to have worked very successfully.

As an aspect of that strategy, dissuasion commissions were set up so that somebody apprehended in possession of an amount of a drug—a psychoactive substance—would have to go before the dissuasion commission. As the noble Baroness said, it consists of a clinical psychologist or psychiatrist, a social worker and a lawyer; it is a fairly formidable panel to have to face. But if you are brought before that panel, you are not charged with a criminal offence. It does have power to impose administrative sanctions but its main focus is on getting people into treatment.

The central principle of the Portuguese legislation is that drug abuse is a health issue and not a criminal issue. I would suggest to the House that the results have been most impressive. Over five years, the number of people injecting drugs halved; drug-related deaths and new HIV infections more than halved; drug use among the 15 to 24 year-old age group fell; there was no rise in use in the older age groups; very importantly, the rates of continuing use, year-on-year use as opposed to occasional use, fell below the European average; and the numbers seeking treatment doubled, while the costs to the criminal justice system plummeted. All this is documented—there is plenty of evidence to tell us about the success of the Portuguese experiment, which has been going for 15 years. As the noble Baroness noted, the global financial crisis and the extraordinary pressure on the public finances of Portugal made it difficult to persist as fully as they would have wished with the education and treatment dimensions of the strategy. None the less, they have continued with the policy, and as she said, it has become accepted right across the political spectrum. I know that Home Office representatives have visited Portugal to learn at first hand from Dr Goulão and others about how it has worked. It is puzzling and disappointing that more lessons have not been taken on board.

Amendment 23 in the name of the noble Lord, Lord Paddick, would create powers such that,

“a senior officer or a local authority may require the person to attend a drug treatment programme or drug awareness programme”.

“May require” is quite a prudent element in the drafting, only because—and I fully endorse the policy of encouraging people to go to such programmes and benefit from them—the scale of drug-taking is, sadly and very worryingly, large in this country. A survey of Cambridge students found that 63% had taken illicit drugs, half of them before they had reached the age of 16; 45% of them had bought drugs for their friends; and 14% said that they had at one time or another sold drugs for a profit. A survey in 2011 of people in management jobs in London found that one in 10 took illegal drugs at work or at social events associated with their work. Mostly, they used class A drugs—cocaine and ecstasy. Of course, the use of cocaine and other

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class A drugs can lead to serious addiction, illness and death, so we should congratulate those such as Dr Owen Bowden-Jones, one of the members of the noble Lord’s expert panel, who set up Club Drug Clinic at the Chelsea and Westminster Hospital—and other such clinics have been established across the country—which is particularly focused on helping young professionals who become addicted in this kind of way. I am simply describing the scale of the challenge we face if we seek to make drug awareness and drug treatment programmes available universally to people found in possession of drugs. It is estimated that some 350,000 children in this country have a parent who is a drug addict. I understand that one-third to one-half of those entering prison are already problem drug users. In 2010, there were 2,182 drug-related deaths. So it is a colossal challenge whatever strategy is adopted. Helping more drug users find the healthcare treatment they need will be a challenge on a large scale.

This is not a new dilemma. Back in 1924, the Government of the day established the Rolleston committee. Its recommendation to the Government certainly was that penal elements of policy were important, but it also said that addiction should be treated primarily as a disease. I would suggest that the moral imperative is not to stigmatise or to punish but to help those who are sick. We must communicate facts accurately, precisely and honestly if young people are to respond constructively, seriously and respectfully to the policy and the legislation. In 2000, Lady Runciman and her colleagues said that,

“the most dangerous message of all is the message that all drugs are equally dangerous. When young people know from their own experience that part of the message is either exaggerated or untrue, there is a serious risk that they will discount all of the rest”.

One of the difficulties with this legislation is that it fails to discriminate between the harms at different levels of psychoactive substances. I understand the problem that, with the proliferation of psychoactive substances on such a scale and at such a pace, this is a very difficult thing to do, but it remains an important objective of policy.

When the previous Labour Government were being tough on the causes of crime and sought to get more people into treatment, they found that it was not plain sailing. The Home Office identified at one point 320,000 so-called problem drug users and invited them to undergo voluntary testing in the hope that it would offer a route away from the revolving door of crime and addiction and into treatment. If I remember aright, the Home Office reallocated a very large sum of money—some £600 million; it was a PES transfer, if that is the right terminology—from the Home Office to the Department of Health and the National Treatment Agency. The Drugs Act 2005 set up the drugs intervention programme, expanding the drugs treatment and testing orders and making it compulsory to test on arrest or when an ASBO is issued so that a defendant was offered the choice of treatment or jail.

4.15 pm

How effective was all of this? The National Audit Office reported in 2004 that there had been 18,400 DTTOs at a cost of £50 million a year but that they had had little impact: 80% of those who entered the

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programme were reconvicted within two years. Coercion into treatment was a problematic policy. Three-quarters of people dropped out of the programmes and only 4% of addicts left the programmes drug free. Professor Mike Hough, one of the academics who assisted the Home Office in the evaluation of the programme, said that they were making exaggerated claims about the effectiveness of their drug strategy to Ministers which were just not sustainable.

The scale is even bigger now with new psychoactive substances, and it is difficult to cure addicts and to help problem drug users. If we are going to do that, we have to invest in aftercare, housing and training programmes for them. There will be significant implications for the budgets of the police, the health service, housing, benefits and further education. What the noble Lord is proposing in his amendment is desirable in principle but we should be well aware of the difficulties that there may well be in practice.

I say again that if we were to legalise and regulate, selectively and strictly, certain drugs, it would open the way to transferring substantial funds away from policing and the criminal justice process into treatment. One dimension of the Government’s anti-drug strategy is building recovery. I would be grateful if the Minister will give his assessment of the success of the building recovery part of the strategy.

Lord Mackay of Clashfern (Con): My Lords, it is important that in this Bill, it is not proposed that there should be a criminal offence of possession of psychoactive substances. In due course we shall see how that works, and it may well be that the lesson to be learned from that could have an effect on the older legislation to which the amendment refers.

As I understood the noble Lord, Paddick, he said that one of the successful police techniques is the conditional caution, which of course depends on the underlying offence—that is the power on which the conditional caution rests. It is an extremely valuable approach to this difficult problem. I agree entirely with what has been said about how difficult a problem this is. I have no doubt at all about that and I do not need to reiterate the point. The conditional caution has a degree of authority behind it to persuade the person who receives it to do what it requires him to do. That is extremely important. The difficulty I have with this amendment is that if a senior officer suggests or requires that someone should attend one of the systems as defined by the Secretary of State in a later amendment, there is not much power to ensure that that will happen.

It is a long time since I had experience as a judge in criminal cases involving drugs where possession was an issue, but I distinctly remember the sadness I felt when sentencing a lady with a young child who had been in possession of quite substantial quantities of prohibited drugs. As the sentencing judge, I had the power to invite her to subscribe to a programme as a condition of her probation, rather on the same principles as the conditional caution, except at a slightly more authoritative level. The lady was obviously very attached to her child and there was a risk that if the situation continued, she might be separated from the child by the social work authorities. I was keen, it if was possible,

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to help her get out of that situation. A good programme aimed at helping people out of addiction was being run in Glasgow at the time. I got her agreement to attend the programme, subject to the probation order, which, as noble Lords will know, meant that if she left the programme she had agreed to attend, there would be other possible consequences. It was to my extraordinary sadness to discover that after she had been getting on well for a few months, she suddenly left. That is one of the difficulties of a programme which has no authority to continue.

I am not good at getting into the minds of very young people, for reasons which are obvious, as the noble Baroness, Lady Meacher, would attest, but there is the question of the psychology of all this. There is also the question of a level of authority, so that the treatment becomes something a person is required to undertake in order ultimately to get out of the criminal justice system. I agree that this is an important matter, and it would be good to see how the regime set out in this Bill works. It might have a good lesson for the existing legislation.

Lord Brooke of Alverthorpe (Lab): My Lords, I apologise to the Committee: I did not speak at Second Reading, but I would like to make a brief contribution at this point and to ask a question. Following up on the issue of alternatives to formal action being taken by the police in introducing people to recovery courses, I should say that I have had a good deal of experience over many years of dealing with people with drug and alcohol addictions. There is a big question mark over whether the addictive personality ever truly recovers, in the sense that people talk about recovery, because people often switch from one addiction to another, but they reach a stage at which they can maintain their addiction and lead a good life. However, it has been my experience that, before they get to that point, no one can undertake a course or programme of any sort unless they have an inherent willingness and desire to recover. One drawback, unexplained in the amendment before us, is this: what does one do with the literally very high percentage of people who will want to opt for this course because it is the soft option, but who have no intention whatever of displaying the willingness and commitment required to achieve recovery?

Lord Cavendish of Furness (Con): With the leave of the House, I follow the noble Lord, Lord Brooke, in apologising for not having taken part at Second Reading. I declare an interest: I am what is called a recovering alcoholic. I am not about to fall over—it is 30 years since I last had a drink—but in keeping with what the noble Lord was saying, I regard myself as possibly still being an addicted person and therefore have to conduct my life accordingly. I endorse everything that the noble Lord says: we have to learn to take responsibility for our lives.

Getting that help means confronting some extremely ugly truths about what we have done and the effect we have had on ourselves and members of our families. That is a very hard role for the state to take on, and it has always been my view that one should rather encourage the private sector. The cost to the economy of addiction —whether to alcohol or to drugs, and in my view the two are closely related—is known almost precisely.

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The best outcome would be if a leading firm with good social values pioneered something that the rest of the world could piggyback on. Firms have a vested interest in their employees and their employees’ families being clean and free of drugs and alcohol, and they know what the cost is. It would be of enormous benefit, which perhaps could be reflected in some tax concessions, if the private sector were encouraged to lead on this matter.

Lord Tunnicliffe (Lab): My Lords, the Opposition are not minded to support Amendment 23. I thank the noble Lord, Lord Paddick, for setting out so clearly the intention behind it, which is to decriminalise the simple possession of all drugs listed under the 1971 Act and partially replace that with a drug awareness programme. I emphasise that we believe that education and treatment have to be an essential part of the whole programme that the Government must responsibly pursue to tackle the enormous problems that drug addiction produces, but we do not believe that this is the vehicle to make such a substantial change to the 1971 Act. If the Government were minded to go down this road, surely they would first have to conduct a major programme of research and a major consultation. They may choose to do that, and I await the Minister’s response with some interest, but we are not in favour of the delay that such a research and consultation programme would lead to. The Bill mends a hole in the 1971 Act with respect to psychoactive drugs, and it should be enacted as soon as reasonably practicable in order to attack this difficult problem.

Lord Bates: My Lords, I thank the noble Lord, Lord Paddick, for introducing the debate on this amendment and giving us an opportunity to contemplate in broad terms these two groups of issues: one around the experience of dealing with people with drug problems and the other looking at international comparisons and alternatives, and health and education. This is something that your Lordships’ House does incredibly well: drawing on people who have had practical experience, not just in the police, as the noble Lord, Lord Paddick, has, but in adjudicating, as my noble and learned friend Lord Mackay of Clashfern has done in difficult areas. Then there were the contributions from the noble Lord, Lord Brooke of Alverthorpe, and my noble friend Lord Cavendish about their own experiences in trying to assist and work with people coming to terms with addiction. It has been a very thoughtful debate.

I am conscious that I will not be able to cover all the points, but we have a meeting with all interested Peers on 7 July in Committee Room 10A between 4 pm and 5 pm. We will announce it on the all-party Whip—or the business managers will, lest I overegg my powers. It has been set up particularly so that we can hear from Public Health England and about what is happening in education and treatment. I agree wholeheartedly with the noble Lord, Lord Tunnicliffe, that that goes very much to the heart of the wider issue we are seeking to address. The point made by the noble Lord, Lord Howarth, about updating where the Government and Public Health England are with the wider drug strategy and building recovery programmes might be usefully discussed at that meeting, along with many other issues.

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4.30 pm

Let me put some remarks on the record and then come back to some of the specific questions that have been put to me. I acknowledge that drugs policy is a particularly difficult and challenging part of public and social policy. There probably are some countries in the world that do not wrestle with the problem but not many. Certainly everybody in the West, North America, South America, and Africa, and across Europe into Asia, is wrestling with the same challenges. My noble friend Lord Blencathra made the point that we look at other countries and draw conclusions. If there was a silver bullet or something that worked universally, clearly the world, being the way it is, would have unearthed it. Indeed, the UN General Assembly special session on drugs, which meets again next year, tries to harness experience from around the world. There is also the diligent research and work of our own expert panel, as well as examples of particular cultures in particular places where programmes have worked.

In that process, we should not underestimate that people might also take a look at drugs policy in this country and suggest that, across the majority of drugs and age groups, there has been a long-term downward trend in drug use over the last decade. Among 11 to 15 year-olds, drug use has been falling since its peak in 2003. More people are recovering from their dependency now than in 2009-10. The average waiting time to access treatment is down to three days. I pay tribute to the previous Government—the noble Lord, Lord Patel, talked about this at Second Reading—for the programmes which were started then and have been continued. We should not be averse to saying that there have been examples of success in many different jurisdictions, not just in Portugal—although that is an important area that we need to look at.

The noble Lord, Lord Paddick, seeks to remove the possession offence for controlled drugs under the Misuse of Drugs Act. The Government’s position is that liberalisation, through decriminalisation of harmful drugs, is not the answer to the problems we face. This Government have no intention of decriminalising the possession of drugs. It would not eliminate the crime committed by the illicit trade, nor would it address the harms associated with drug dependence and the misery that this can cause to families and communities.

Decriminalisation fails to recognise the complexity of the problem and has insufficient regard for the harms that drugs pose to the individual. It neither addresses the risk factors which lead individuals to misuse drugs and alcohol, nor takes into account the misery, cost and lost opportunities that dependence inflicts on individuals, their families and the wider community. Preventing and reducing drug misuse is a key part of our evidence-based drugs strategy. It is a drugs strategy which produces an annual report and is ongoing across many government departments. We take a broad approach to prevention, combining universal action with targeted action for those most at risk or already misusing drugs.

Drug recovery is at the heart of our current approach, with the key aim to support people to free themselves from drug dependency for good. We have moved our focus beyond the treatment system to include factors

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that help people recover from drug dependency and fully integrate back into the community. Amendment 23 in the name of the noble Lord, Lord Paddick, seeks to give police and local authorities a discretion to require a person to attend a drug treatment programme or drug awareness programme. The Government strongly support local investment in approaches that help to identify drug-using offenders and direct them to treatment at the earliest possible opportunity.

There are a number of examples of this work in action. For example, we are supporting police to use the model of drug testing on arrest to ensure that individuals are identified and referred to the treatment they need. We are supporting NHS England in its rollout of a new standard model of liaison and diversion services that identify and assess those who may have mental health or substance misuse issues—a point eloquently referred to earlier in the debate. There are now 22 liaison and diversion sites set up and running, covering more than 50% of the population. We are working with local areas to identify and respond to their heroin-using population in order to grip and reduce harms caused by heroin and crack cocaine, including drug-related offending and wider social outcomes. Finally, NHS England, Public Health England and the National Offender Management Service are working together to share and develop emerging learning from the north-west prisons “through the gate” substance misuse services early adopter approach.

The police and the courts of course have discretion in the implementation of our drug laws so that an informed and proportionate approach can be taken to an individual caught in possession of controlled drugs. The police have a range of alternatives. These currently include simple cautions, conditional cautions and—in cases of cannabis possession—cannabis warnings and penalty notices for disorder. Although a criminal offence is still committed, these types of out-of-court disposals do not amount to a criminal conviction.

Following a consultation on the current out-of-court disposal framework, the Government announced in November 2014 their intention to simplify the current range of disposals into two tiers: a suspended prosecution based around a conditional caution and a new statutory community resolution. The new framework would require offenders to take action to comply with the new disposals and face meaningful consequences if they fail to do so, rather than simply accept a warning. Both tiers would allow and encourage the police to include rehabilitative measures designed to prevent reoffending, including interventions to tackle drugs misuse and to help address underlying issues that may have contributed to the offending. The new arrangements are being piloted in three police force areas before a decision is taken on whether to roll them out more widely. It is the Government’s firm view that, by delivering on national commitments set out in the drug strategy and in other programmes, and by enabling local partners to take responsibility at a local level, we will enable more individuals to become free of their dependence and contribute to society.

On the idea of giving more local power, it was the Drugs Act, referred to by the noble Lord, Lord Howarth, that sought to address the issue raised by my noble

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friend Lord Blencathra: what actually constitutes personal possession? The Act went into a fine line-by-line definition, a bit similar to what had happened in Portugal, which defined an amount. We then found that this was unworkable for similar types of reasons that we have found for psychoactive substances: once you put down on a bit of paper what the amount is, people naturally start to try to find a way around it. What did we come back to? We came back to saying that the police at the scene should use their own judgment and determine whether drugs are for personal use or whether a person is dealing.

That is why we come back to where we are with this measure; we have said that it is for the police to apply that judgment as to whether the person they intend to stop and search is someone who they feel is likely to be in the production, supply or import or export of psychoactive substances, and whether the substances found would contribute to that, whether they be large or small.

So that is more or less where we have come to. I am sure that the noble Lord will not come round completely to saying that the Government have arrived at something which is a little closer to his innovations in Brixton, and clearly not on the scale proposed in his amendment. However, given our commitment to hold a meeting for all interested Peers, which will provide an opportunity for ongoing discussion, I hope that he will feel able to withdraw the amendment.

Lord Howarth of Newport: Will the Minister help us just a little bit further, because I know the Home Office knows a good deal about what has happened in Portugal? Much earlier in his speech, he was very dismissive of the benefits of decriminalisation on the Portuguese model, as I understood him to say—that is, possession of small amounts of drugs precisely defined for personal use. How, then, does he account for the success of the Portuguese policy?

Lord Bates: I did not mean to be dismissive about that. The Drugs:International Comparators report, which was referenced by several noble Lords, is clear that the success in Portugal cannot be attributed to decriminalisation and dissuasion panels alone. While drug use went down and health outcomes went up, there was at the same time a significant investment in treatment, which has already been referred to. That is an important part of it. That report could have looked at some of the—albeit modest—successes which we have had in this country with our approach. What is beyond doubt is that it is not just enforcement or the law but also education and health treatment which are at the heart of our being able to deal with this problem.

Lord Paddick: My Lords, I thank all noble Lords who contributed to this debate and wish, if I may, to address a few of the points that were made.

The noble Lord, Lord Blencathra, asked how much constitutes personal use. If you have even a small amount of a drug but have it all in little bags, that indicates that you might be supplying it, or have possession with the intent to supply it. That is the sort of decision that a police officer has to make on the street. Whether it is to do with cannabis or any controlled

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drug, the decision on whether it is for personal use or possession with the intent to supply is one that is faced by officers every day.

Mention was made of the Swedish absolutely zero tolerance approach. I was not going to raise this issue again but it goes to the heart of what we are discussing. We are all on the same page as regards a lot of what the Minister has said, and what I have suggested in trying to persuade people to get treatment, or on education and so forth. However, the very big difference between us, of course, is whether or not possession is illegal.

As I say, I was not going to bring this up again, but I mentioned at Second Reading a former partner of mine, who became my best friend, who tragically died as a result of taking drugs. His mother asked me to go to the inquest, which is where I learned what had happened. He realised that he had taken an overdose of a drug called GHB. I honestly believe that, if possession of a small amount of that drug for personal use had not been illegal, he and the people that he was with would have sought medical assistance quicker. In fact, he tried to make himself sick in order to get rid of the overdose and thought that he would be okay. He fell asleep and, by the time he was found by his friends, he had obviously stopped breathing for half an hour or an hour or so. They did not seek medical treatment because his condition was to do with illegal drugs.

I know a nightclub manager in Vauxhall who tells me that in other clubs in Vauxhall partygoers who have collapsed—collapsing is what happens if you overdose on GHB—as a result of taking illegal drugs are carried out on to the street by security before an ambulance is called, which could be the difference between life and death for those people, because the nightclub owners do not want to have a reputation with the police that illegal drugs are being used in their clubs. That is why in Ireland, with the passing of a similar Bill, and in Sweden, there are so many deaths because people are taking illegal substances and therefore do not seek the medical help that they desperately need. So I hope your Lordships will forgive me but this is personal as well as professional for me.

4.45 pm

The noble and learned Lord, Lord Mackay of Clashfern, raised the issue of authority. These people will have been arrested for a substantive offence and if they do not accept the route of treatment—which they are entitled to do; it is very difficult to force people down that route—they simply get charged with the offence for which they have been arrested. If they are found guilty, there is an opportunity for the courts to have another go as far as that is concerned.

No doubt there will be opportunities to discuss this at the meeting the Minister has referred to and to come back to it on Report. But for the moment, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Schedule 1: Exempted substances

Amendment 24 not moved.

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Amendment 25

Moved by Baroness Meacher

25: Schedule 1, page 34, line 7, leave out paragraph 2 and insert—

“2 All medicinal products prescribed by a doctor or sold by a licensed pharmacist.”

Baroness Meacher: My Lords, I will also speak to Amendments 26 and 27. I am very grateful to Rudi Fortson QC for advising me about the issues I am seeking to resolve with these three amendments.

Amendment 25 seeks to adjust Schedule 1 in order to exempt:

“All medicinal products prescribed by a doctor or sold by a licensed pharmacist”.

In the absence of this amendment, some perfectly legitimate medications prescribed by a medical practitioner may be banned under this legislation. The point here is that the exemption for “investigational medicinal products” does not encompass the supply by a GP on a named-patient basis of a particular medication. The GP will not be acting in pursuance of a clinical trial and thus will not be covered by the exemption of substances used for investigational purposes.

In the Bill no exemption is made for medical practitioners who believe it to be in the patient’s best interests to supply a psychoactive substance that is unlicensed and which does not fall within Schedule 1. The amendment seeks to overcome this problem. I can give the House an example to clarify the point. Acetylcysteine is used on a named-patient basis for cystic fibrosis, pulmonary fibrosis and renal protection. These are not trivial matters; they are very serious and it is really important that doctors are able to prescribe these substances in the future despite the passage of the Bill, which we assume will go through in some form. I hope the Minister has had an opportunity to consider this issue and, if she would find it helpful to discuss it with some experts, I have proposed a few people who would be happy to attend a meeting.

A separate issue is covered by Amendment 26. I thank the Royal College of Psychiatrists, as well as Rudi Fortson QC, for its briefing on this amendment. Here the need is to ensure that research scientists using psychoactive substances in their work to develop new medicines or progress neuroscience research do not have their work hindered by this legislation. I am sure the Government do not intend to interfere with this important sphere of research but I hope they will ensure that the final wording of the Bill achieves fully the objectives of the amendment. The royal college welcomes the Bill’s current exemptions for investigational medicinal products as defined by the Medicines for Human Use (Clinical Trials) Regulations 2004. Moreover, as the ban on psychoactive substances set out in the Bill relates only to such substances that are consumed by humans, this means that research that does not involve human consumption of a psychoactive substance— that is, pre-clinical trials—would not be banned under the Bill.

However, there are some experiments involving humans that sit outside the 2004 regulations. Some biologicals and early-stage pharmacological tools—proteins or

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manipulated chemical compounds—would fall outside this definition as they cannot be classified as “investigational medicinal products”. According to the Royal College of Psychiatrists, this is hugely concerning as physiological experiments on humans, for example, or studies in human neuroscience looking at issues such as attention, consciousness and memory-use drugs and amino-acids—not medicines—would therefore be illegal under the Bill, unless exempted via this amendment.

The aim of the amendment is to ensure that all research, including work using humans consuming substances for research purposes—not for fun—but not captured by the Medicines for Human Use (Clinical Trials) Regulations 2004, would remain legal and enable vital neuroscientific research to continue. Without this amendment, laboratory suppliers may be wary of supplying some requested compounds for neuroscience research because of their potential to have a psychoactive effect on humans. This could mean that vital new medicines may never get developed. I would be grateful if the Minister could confirm that she agrees that the term “investigational medicinal products”, as defined by the 2004 regulations, does not cover all research used to develop new medicines or progress neuroscience research, and therefore that this amendment really is needed to protect these crucial areas of research.

At this point, I want to mention the letter to the Home Secretary from the Academy of Medical Sciences, the British Pharmacological Society, the Royal College of Psychiatrists, the Royal Society, the Wellcome Trust and the Society of Biology. They all expressed concern about this issue. The letter welcomes my amendment but makes the point that it “goes some way towards” protecting vital research. I obviously have not managed to go all the way in my amendment. I hope that the Ministers—the noble Baroness and the noble Lord—would agree to meet the key people to make sure that the wording in the Bill really is right at the end of the day.

My final point on this issue is that the problems could of course be resolved by regulations, as indicated in Clause 10. However, this seems far too important a matter to leave to regulations, and I think that all those scientists would be very concerned if it was not in the Bill. I also think I am right in saying that a similar issue was dealt with in the Bill that became the Misuse of Drugs Act 1971. Perhaps the noble Baroness can address that issue, because at least we would therefore have consistency. Even without that point, this matter needs to be dealt with in the Bill to make sure that our research base is not interfered with.

I turn very briefly to Amendment 27, which addresses the possibility that low non-psychoactive doses of potentially psychoactive substances could and should be exempted from the scope of the Bill. How can a Government justify criminalising someone for supplying to someone else a dose of a substance when that dose in itself is not psychoactive? Can the Minister respond to this point or take it away and write to me before Report to clarify the position? The scientists are worried about this because they often use tiny amounts of a psychoactive substance and want all that to be exempted from the Bill. Again, the Minister might find it helpful to discuss this with the experts; I do not pretend to be an expert on this matter myself. I beg to move.

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Baroness Hamwee: My Lords, we have Amendment 28 in this group. The noble Baroness has covered the issues very thoroughly, particularly with regard to her Amendment 26, so I do not want to take too long. I struggled with the issue of research, in particular as to how Schedule 1 and Clause 10 fitted together, if they fitted at all. The noble Baroness alluded to that. As she said, the reference to the regulations in Schedule 1 raises the issue of non-human use and research for purposes other than those covered in the Medicines for Human Use (Clinical Trials) Regulations—for instance, understanding neurological processes. The definition seems to link a product with clinical trials. I am no scientist, but I do not know how you get to the point of a trial without a much wider exemption than we have as the Bill stands. Like the noble Baroness, I am concerned as to whether Clause 10 may be used to make research not an offence. I do not think that would be the right way to go about this but, if it is in the Government’s mind, questions would include what is being proposed, when it will happen and what the process of that will be.

On Tuesday last week, on the first day in Committee, I mentioned the problems of undertaking research on cannabis, through my amendment on medicinal cannabis. Those problems were described by Professor Curran and Frank Warburton in the report which I mentioned then. I am not entirely confident that our amendment captures everything that needs to be captured, and although I am glad to see the amendment on the same subject in the name of noble Lords, Lord Rosser and Lord Tunnicliffe, I am not entirely convinced that theirs captures everything either—but that is why we have Committee.

The correspondence which we received was very helpful in prompting us to focus on this. The Academy of Medical Sciences, in its letter to the Home Secretary, referred to the “important tools” that scientists need. This House has a well-deserved reputation for focusing on research and ensuring that research is assisted and not hampered. It is very clear to me that we need to explore this issue further and to ensure that the Bill does not hamper, but promotes, research.

Lord Howarth of Newport: My Lords, very briefly, I would endorse every word that the noble Baroness, Lady Meacher, said and put a rather practical consideration to the Minister. The noble Baroness, Lady Meacher, asked for a meeting, and I am sure that Ministers will wish to hold such a meeting. However, time is somewhat against us, as we have Report in a fortnight’s time, and it would be very helpful if the Minister could assure us that that meeting will take place. I am certain the Government will not ignore these very important representations from eminent research bodies in the medical field—they are bound to take account of them. However, just as the Academy of Medical Sciences has shared its letter with noble Lords who are participating in these proceedings, it would be very helpful if the Home Secretary would share her reply with us and if we could have, before Report, an explicit amendment tabled by the Government to remedy the defects that these eminent research bodies, under the umbrella of the Academy of Medical Sciences, have drawn to our attention.

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Lord Rosser: My Lords, we also have an amendment in this group, Amendment 49, providing for regulations under Clause 10 to give exemptions from an offence under this Bill—and from its ban—for specific medical research activity. Of course, a number of noble Lords raised concerns at Second Reading about the impact of the ban on new psychoactive substances and the creation of an offence on medical research. We do not want the Bill to inhibit or restrict important medical research that will help us to improve our knowledge of drugs and their impact, and I do not believe that that is the Government’s intention.

5 pm

Clause 10 would appear to provide a means to ensure that proper medical research can be exempt from the consequential effects of the ban on psychoactive substances in the Bill, and our amendment refers to appropriate regulations being laid before both Houses to achieve this goal. We need to hear from the Government how they intend to give assurance that legitimate research will not be inhibited or restricted by the terms of this Bill, and how any processes or procedures for enabling medical research to be exempt from an offence under the Bill would work in practice.

The report of the Constitution Committee refers to Clause 10 authorising the Secretary of State,

“to specify excepted acts”,

from a defence under the Bill,

“by making regulations”.

The committee stated that the House might,

“wish to consider whether it is appropriate to confer such a broad power on the Secretary of State, and in particular whether it should be unconstrained by any textual indication as to the purpose or purposes for which it may be exercised”.

Our amendment inserts a specific requirement in Clause 10 in respect of medical research activity.

The Constitution Committee also drew attention to the fact that,

“the details of the excepted-acts regime are … absent from the Bill”,

unlike the exempted-substances regime. It says:

“Whether any such regime is in fact established and, if so, on what terms are instead matters that are wholly for the Secretary of State to determine … The House may wish to consider whether it is appropriate to leave the details of the excepted-acts regime to be determined wholly through secondary legislation”.

I assume from an earlier debate that that is an issue that the Government will consider in the light of the report from the Constitution Committee.

As the noble Baroness, Lady Meacher, said, the Secretary of State has received a letter from a number of major organisations involved in, or associated with, medical and scientific research, expressing concern about the Bill’s potential unintended consequences for medical research and asking that the final draft does not pose a barrier to important scientific work, both in neuroscience and in other areas. I hope that the Minister will be prepared to show in her response that the Government will take the necessary action to address those concerns, and that we do not end up with a Bill that could be interpreted as leaving researchers open to the possibility of prosecution.

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Baroness Chisholm of Owlpen (Con): My Lords, I believe that the noble Baroness, Lady Meacher, and the noble Lords, Lord Paddick and Lord Rosser, have the same ambition as the Government—to ensure that lawful medical practice and patient care, as well as bona fide research, are untouched by the provisions of this Bill.

The purpose of Schedule 1 is to list psychoactive substances exempted from the scope of the Bill. It excludes certain substances which are not the target of this legislation, and are mostly already subject to regulatory controls. Importantly, under paragraph 2, it exempts medicinal products; this is the subject of Amendment 25, as proposed by the noble Baroness, Lady Meacher. This covers those products that have marketing authorisations issued in the UK, in the EU, or such authorisation issued by the licensing authority. The current definition for medicinal products was a starting point for the Bill’s introduction and is being reviewed again by the Medicines and Healthcare Products Regulatory Agency.

We continue to test whether our objective is achieved by the schedule as currently drafted. For example, we recognise that unlicensed medicines for human use need to be taken out of scope. These are lawfully manufactured, imported, distributed or supplied for the treatment of individual patients after being ordered by a range of healthcare professionals, not just doctors. It was always our intention to remove these medicines and this activity from the scope of the Bill. In this case, we see the advantages of making provision on the face of the Bill—in Schedule 1 to the Bill—rather than in regulations made by virtue of the power in Clause 10. I confirm to the noble Baroness, Lady Meacher, that our intention is to bring forward appropriate amendments—if possible in time for Report—to ensure that the exemption for such products is properly aligned with existing medicines legislation.

Amendments 26, 28 and 49 all relate to safeguarding research into the medicinal and other legitimate uses of psychoactive substances. As I said, the Government attach a high priority to bona fide scientific research and to not putting in place unnecessary regulatory barriers that in any way impede research in the UK. We are actively ensuring, in accordance with our original intention, that any interaction between the provisions of the Bill and those conducting or supporting bona fide research into psychoactive substances is removed.

Along with the Department of Health, we are testing the need for greater latitude, over and above this exemption. As a priority, we are establishing how we best achieve this, perhaps through the drafting of further exemptions in the Bill. There could also be a case for making exceptions through regulations under Clause 10. We may well, therefore, bring forward government amendments on this issue on Report. I have listened to the concerns that have been expressed and all our further considerations will take account of the text and intent of noble Lords’ respective amendments.

Finally, the noble Baroness, Lady Meacher, has also tabled Amendment 27 in this group, which would exempt low non-psychoactive doses of psychoactive substances. My understanding is that such materials are used by forensic and other laboratories, which hold these chemical reference samples for investigative

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procedures. I can assure the noble Baroness that, as these substances are not supplied for human consumption, they are already outside the scope of the Bill.

I hope I have demonstrated that I have sympathy for the intention behind Amendments 25, 26, 28 and 49. We are actively looking at whether the definition of medicinal products needs to be strengthened and whether further precision is needed to safeguard legitimate research. We will also make every effort to get together with the experts; that is an excellent idea. On the understanding that we will return to these issues on Report, I trust that the noble Baroness will be content to withdraw her amendment.

Baroness Hamwee: My Lords, is there an issue around veterinary medicine as well as human medicine? I do not know the answer to that; it is a straight question. Is it something that needs to be looked at? The Minister is shaking her head, which suggests that one could go on producing veterinary medicines without offending under the Bill, which raises all sorts of other issues.

Baroness Chisholm of Owlpen: Veterinary medicines are not for human consumption, so they do not fall within the scope of the Bill.

Baroness Hamwee: My concern is that research in that area should not be impeded.

Baroness Meacher: My Lords, I am grateful to the Minister for her response, which was very positive. I was particularly pleased that she agreed that these matters should be dealt with in the Bill, which suggests agreement that they are sufficiently important for them to be dealt with there, and said that the Government will be bringing forward amendments before Report on the medicinal matter and may bring forward amendments on the research matter. I understand from the experts—the scientists—that it is important that there are amendments before Report on that issue. I hope the Minister may be able to respond immediately to that point because it will be difficult to leave this one unless we have that assurance.

On the low-dose issue, her reply was interesting because I tend to agree with her that surely these things are not for human consumption. On the other hand, the matter has been raised with me by people who know about these things, and I must express my gratitude for the willingness of Ministers to meet the experts and cover that issue and the others because they are the people who need to advise Ministers about exactly what the wording should be on all these matters. I express my gratitude, and I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

Amendments 26 to 28 not moved.

Amendment 29

Moved by Lord Norton of Louth

29: Schedule 1, page 34, leave out lines 25 to 29

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Lord Norton of Louth: My Lords, my amendment would remove alcohol from the list of exempted substances in Schedule 1. The purpose of tabling the amendment is to enable the Minister to do that which he did not have time to do at Second Reading: to provide an intellectual justification for the exclusion of alcohol from the provisions of the Bill.

Alcohol has the effects listed in Clause 2(2) and as developed by the Minister in responding in Committee on Amendment 7. Why, then, is it an exempted substance? The logic of the Bill is, on the face of it, unclear. It seeks to prohibit psychoactive substances that are seen to be harmful, but it then exempts the substance that is the most harmful of all in human, social and economic terms. Alcohol misuse kills, it rips families apart, it puts strain on public services—the police and the NHS—and it has enormous economic consequences for public services and for employers in working days lost. There are at least 5,000 alcohol-related deaths a year. If one includes deaths where alcohol is causally implicated, the figure rises to some 20,000, a point made by the noble Baroness, Lady Hollins, at Second Reading.

Alcohol abuse remains the leading risk factor in deaths among men and women aged 15 to 49 in the United Kingdom. In 2012-13, there were more than 1 million hospital admissions related to alcohol consumption, and almost 300,000 were wholly attributable to alcohol consumption or classed as alcohol specific. Alcohol abuse not only harms those who drink but impacts on society as well. Heavy drinking can not only damage one’s physical and mental health but lead to assaults and leave one vulnerable to assault. There were nearly 10,000 casualties of drink-driving the UK in 2012, including 230 killed. In almost half of all violent incidents, the victim believed that the offender was under the influence of alcohol. Perhaps most remarkable of all, according to Alcohol Concern, the NHS estimates that some 9% of men and 4% of women in the UK show signs of alcohol dependence; that the cost of alcohol misuse in England is an estimated £21 billion in healthcare, crime and lost productivity; that the cost to the hard-pressed NHS is £3.5 billion; and that the cost in terms of crime is £11 billion. It is difficult to comprehend the sheer scale of the social and economic cost.

Why do we continue to tolerate heavy drinking and many city centres being awash with drunken youths on Saturday evenings, and why are we willing to excuse clearly inebriated individuals in all sorts of social settings but do not tolerate those who take other psychoactive substances? Why is one type of misuse apparently culturally acceptable, or at least tolerated, but not the other? Should we not adopt the same approach to all psychoactive substances that can produce serious personal, social and economic harm? Why do we seek to ban the manufacture and distribution of one but not the other? My noble friend may say that the answer is purely practical: that we cannot ban the production and sale of alcohol because such a ban would be unenforceable; we would be emulating the USA of the 1920s. If that is the case, let us have that on the record. Is the use of legal highs on such a scale that a ban on their production and distribution can be

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enforced, or, at least, is that the justification? If so, what is the evidence that such a prohibition is enforceable? What consideration has been given to the alternatives?

5.15 pm

Why do the Government think that regulation and education are the best approach to tackling alcohol issues but not legal highs? I hold no brief for legal highs, but I hold no brief for alcohol either. I regard them all as potentially harmful substances. I would not dream of drinking alcohol. Some noble Lords may say, “You don’t know what you’re missing”. I wonder how those noble Lords would respond to someone who takes legal highs saying to them, “You don’t know what you’re missing”. Let us therefore be quite clear as to the reason why we ban one type of damaging psychoactive substance but not another. Why is alcohol in Schedule 1? What is the Government’s intellectual case for treating it as an exempted substance? I beg to move.

The Deputy Speaker (Baroness Fookes) (Con): My Lords, I point out that if Amendment 29 is agreed, I shall not be able to call Amendment 30 by reason of pre-emption.

Lord Brooke of Alverthorpe: My Lords, had I spoken at Second Reading I would have supported the Government’s aims of trying to avoid the harms which arise from legal highs and to prevent them wherever possible. However, like the noble Lord, Lord Norton of Louth, I would have gone on to ask why the Government are so inconsistent in their approach. Ethyl alcohol is a psychoactive substance. There is no question whatever about that—the Government cannot disagree. It will be very interesting to hear why they believe it should be treated differently.

When one considers the differing approaches the Government take to alcohol these days, one sees the great sledge-hammer—that is the best way to describe it—that has been brought in to deal with an issue that, although worrying, is a nut compared with the boulder that is alcohol and the problems it creates for our society. The noble Lord, Lord Norton of Louth, just described those problems, so I will not repeat them. The Government should think long and hard about moving, fairly quickly, on some of their policies on alcohol if they want to carry the confidence of this House in trying to make changes of this nature. They have a responsibility deal whereby, in partnership with the drinks industry, they seek to reduce the volume of alcohol consumed in this country. They have targets, yet the Chancellor stands up in March and announces a freeze in duty on wine, beer and cider and a reduction in some other areas, including a 2% reduction in the duty on spirits.

The Government will not use pricing as a mechanism to try to discourage drinking, and the drinks industry sees that such pricing effectively discourages people from buying its products, so it lobbies the Government to reduce duties, which the Government, in turn, do. On the one hand we have the responsibility deal, with its targets that seek to reduce the consumption of alcohol, while on the other hand we have the statement

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made by the Chancellor. As the Government documents produced after the Budget prove, he will in fact increase the volume of alcohol that is sold, which, in turn, will increase the harms that arise for people who abuse it. So, a conflict does arise. I want to persuade the Minister to think ahead about what might be happening with alcohol and alcohol-related substances, and about whether there is a case for making a change to the schedule.

As long ago as last summer, I wrote to the noble Earl, Lord Howe, about a powdered white alcohol called Palcohol which is being marketed in the United States. Powdered alcohol has been around in Europe for quite some time. It was produced in Germany and then in Holland about seven or eight years ago but was not marketed. It is now being produced and marketed in the States. I wrote to the noble Earl to find out what the Government were doing in their conversations with the drinks industry at the responsibility deal level. The reply was:

“The Department has not discussed the import, production and sale in the United Kingdom of Palcahol and its European equivalents with partners in the Responsibility Deal”.

I also wrote to the noble Lord in the Home Office to ask,

“what assessment they have made of the decision of five states in the United States to ban the sale of Palcahol”.

He replied:

“The Government is aware of powdered alcohol from media reports and the banning of the product in five states of the United States of America. The Government is not aware of powdered alcohol being marketed or made available to buy in England and Wales”.—[Official Report, 6/1/15; col. WA 107.]

I followed that up with another Question:

“To ask Her Majesty’s Government what assessment they have made of the status under the Licensing Act 2003 or the Misuse of Drugs Act 1971 of imports from the United States or Europe of alcohol powders”.

The noble Lord, Lord Bates, told me:

“Although the Act refers to liquids and this product is sold in solid form, it is intended to be drunk as a liquid”.

I tell the Minister that he is not quite up to date with what people are doing with this powdered drink. They are not simply taking it as a liquid; it can be snorted. Admittedly it is an uncomfortable experience, I understand, but it can be snorted. More particularly, it can be baked into cakes or go into confectionary and a whole range of products that people are now contemplating using it in. The noble Lord went on to say:

“The Government is not aware of powdered alcohol being marketed or made available to buy in England and Wales, although we are aware of its sale in other countries. In the event that there is a proposal to market powdered alcohol in England and Wales, the Home Office will make a formal assessment of its legal position”.—[Official Report, 7/1/15; col. WA 223.]

I would argue that this is the day when the Government can start to look at the legal position of Palcohol and at whether they are prepared to see it come into the country. If so, how are they going to handle it? It will shortly be available on the internet and imported through the internet, because that is how it will be marketed. It is already spreading on a wide scale within the US and, as night follows day, it will come to the UK.

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Therefore, I suggest that the Government go back to the Answers that they sent me. I suggest that they look at what is happening in the United States at the moment, the problems that are arising there and the reasons why some of the states have banned it. If they are not prepared to accept in totality the amendment moved by the noble Lord, Lord Norton of Louth, which I support—although I suspect that the Government will not—I also suggest that they look at whether they are at least prepared to consider whether this is a borderline area in which they should take some action, which they could do under this legislation. If they are sensible, they will look to the future, lay the ground, put this substance into the schedule and ban it, in the same way as they are banning legal highs. I hope that they are prepared to consider that.

Lord Blencathra: My Lords, I could never hope to give my noble friend an intellectual answer as to why all alcohol is exempted, but perhaps I can try to give him a legal one and a practical political one.

Most alcohol policy in the United Kingdom is now controlled by the EU and we have a few little bits left. I refer the Committee to the last report conducted by EU Sub-Committee F on the EU alcohol strategy. It was an eye-opener for all of us. Given the parts of alcohol policy we control, if we were to be completely consistent, there would probably be an increase in the price of Scotch whisky. However, that cannot be done for a variety of reasons—not least, it would probably feed into nationalism. With regard to the other parts of the policy, cider is desperately underpriced. No Government have felt it appropriate—no doubt for political reasons—to increase the price and disadvantage manufacturers in the West Country. It may be that with only one Member left in the West Country—I am not meaning to be snide here—a future Labour Government may, in due course, feel it more politically acceptable to put up the price of cider.

The parts that are controlled by the EU mean that, for example, we see on wine and spirit bottles in this country how many units of alcohol are in a glass and how many are in the bottle. That is a purely voluntary system because we are not allowed, under EU rules, to make it compulsory. We also discovered on the committee that some young people—mainly women, although men as well—may be on some form of crash diet and think they can avoid fatty food and sugars and just drink white wine instead. We are not allowed to put the calorific value of a glass of wine on the bottle, except by some voluntary means.

In Scotland, they are trying to conduct an excellent experiment on unit pricing. There may be considerable merit in unit pricing and I think that the Government in England are watching carefully to see how they get on. But of course they have been taken to the European Court, where it may be regarded as a constraint on trade —so Scotland may be prohibited from using unit pricing under EU rules. I could go on, but I will not, because I do not want to be seen to be too mischievous on this. However, there are a lot of other aspects of alcohol policy that we are no longer completely in charge of.

The other, more serious point is that all of us on EU Sub-Committee F, including my colleagues, noble Lords and Baronesses who are much more experienced

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than I, began the report a year ago thinking that alcohol abuse was out of control in this country, that everyone was drinking more and that we had a terrible problem. We were very surprised to discover that alcohol use is declining, particularly among young people. We cannot have an EU alcohol strategy because every country has a completely different problem. They all have problems with binge drinking, but different age groups are bingeing on different kinds of alcohol. What we discovered is that a small minority are drinking more to excess. I think that I am right in saying that alcohol deaths through cirrhosis of the liver have increased, but it is a smaller minority drinking extraordinary amounts—one or two bottles of vodka or scotch a day, so long as they can afford it. But overall, alcohol reduction policies are working.

In conclusion, I say to my noble friend that if he wants to really have more control over alcohol policy and be able to implement his amendment, he will need to vote no in the referendum when it comes.

Baroness Meacher: My Lords, I want to make a brief but important point. In responding to the noble Lord, Lord Norton, will the Minister address his mind to not only the illogicality but the danger of exempting alcohol from the scope of the Bill while banning relatively very safe psychoactive substances? If this ban works at all—the Minister knows that I am pretty sceptical about it—the Government would, in effect, be preventing or discouraging very strongly young people from taking relatively very safe substances while encouraging them, one could argue, to drink alcohol, which we know is a killer drug. Therefore, I ask the Minister, in responding the noble Lord, Lord Norton, to address that particular point about the danger of banning substances while leaving alcohol exempt.

The Earl of Erroll (CB): My Lords, I want to make a quick point because the subject of alcohol has been introduced into the debate. Although I entirely agree with my noble friend Lady Meacher about not classing all drugs together, the idea that we should include alcohol in this would, equally, cause huge problems. Every society in the world has always had something that allowed them to let their hair down at parties. Introducing the subject of alcohol into this sort of debate always makes me think of the definition of a puritan as someone who has a haunting fear that someone somewhere might be enjoying themselves. I get very worried when we try to cover all these things and try to stop everything.

As to the point about increasing the price of alcohol and unit pricing, some time ago some young people pointed out to me that if you increase the price of alcohol, the price of drugs becomes relatively cheaper. It drives people away from something over which we have relative control, which we deliver in controlled concentrations that we understand, into an area over which we have less control. That is very dangerous. We should be careful about trying to alter people’s behaviour in relation to alcohol by pricing mechanisms. There are a lot of people who may be medically qualified, but they do not understand market pressures. That is the only word of caution that I shall say on this matter.

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5.30 pm

Lord Tunnicliffe: My Lords, for the avoidance of doubt, it is not the policy of the Labour Party to ban alcohol. I leave it to the Minister to enjoy the privilege of office and explain the intellectual case.

Lord Bates: Oh, that I could get away with that, although I can say that it is not the policy of Her Majesty’s Government to criminalise the consumption of alcohol. On that, we might be clear.

I understand the point made by the noble Lord, Lord Norton of Louth. He has spotted a certain lack of consistency in approach and wishes to draw the Committee’s attention to it. As a distinguished academic, he then invited me to put forward an intellectual case that would satisfy him. Of course, he knows that that will not necessarily be forthcoming.

As I listened to the debate, the thought occurred to me that the nearest you could get to an intellectual case would be to say that you would not necessarily be starting from here with alcohol. It has been enjoyed and endured, probably in equal measure, for about as long as people have been walking around in this great land of ours. Therefore, alcohol has been part of our culture and our society for millennia.

Lord Winston (Lab): In many cultures, cannabis has had exactly the same status and is a good deal less dangerous.

Lord Bates: That is true. I see my officials in the box becoming terribly nervous, as I am jousting way out of my depth here and I should just stick to the script. The point which I was trying to make was that we are dealing in this Bill with a new menace, where there are no controls. People of any age can go into a head shop and procure products which are designated as plant food or as not fit for human consumption. There is no supervision of their manufacture; nobody is required to produce an ID card; and they are unregulated. We have explored different ways of dealing with them and have come down on the side of a blanket ban. I will leave it to the Committee to deduce whether, if alcohol were to be introduced into society today, we would take a different approach. That might be as close as I can possibly get to addressing that.

Let me put on the record some remarks about the Government’s position on alcohol. Alcohol-related harm is estimated to cost society more than £21 billion a year. This figure includes the £11 billion cost of alcohol-related crime and £3.5 billion in costs to the NHS. The harm caused to health is clear. Alcohol misuse is one of the three biggest lifestyle risk factors for disease and death after smoking and obesity. In 2013, more than 6,500 deaths in England were due directly to alcohol consumption. There has also been a steady increase in the number of adults accessing specialist alcohol treatment services, from just over 100,000 people in 2008-09 to nearly 115,000 people in 2013-14.

Alcohol is also a key driver of crime. In particular, it is strongly associated with violent crime. In 53% of violent incidents, victims perceive offenders to be under the influence of alcohol. This is clearly unacceptable.

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We can all agree that alcohol, when consumed excessively, is a dangerous substance, which is why the sale of alcohol is tightly controlled under existing legislation. However, when used responsibly, alcohol plays an important social part in our communities. More than £10 billion is raised each year in alcohol duty and more than £38 billion worth of alcoholic beverages were sold in the UK in 2011. Almost 2 million jobs in the UK are said to be linked to the alcohol industry in some way.

The Government’s alcohol strategy, launched in 2012, promoted targeted action to reduce crime and health problems caused by alcohol without disproportionately affecting responsible drinkers. Local communities, agencies and businesses are best placed to identify and deal with alcohol-related problems in their area. The Home Office has worked with 20 local alcohol action areas to tackle the harms caused by excessive alcohol consumption. These areas worked on initiatives to strengthen local partnerships and share innovative ideas that work. Some of the areas which looked at ways to reduce alcohol-related health harms also explored the evidence and local processes that would be required to introduce a health-related licensing objective to address alcohol-related health harms caused by high density of premises. The project ended in March, and Home Office officials are collating the learning from the work that took place in each of the areas with a view to sharing it more widely in due course.