The alcohol industry has an important part to play, too. The Government challenged the industry to take action as part of the public health responsibility deal. The industry has taken a number of positive steps, such as reducing the number of alcoholic units sold and putting more information on labels—though not as much as my noble friend Lord Blencathra would ask us to, probably for the reasons that he alluded to. In addition, the Government have asked Dame Sally Davies, the Chief Medical Officer, to oversee a review of the alcohol guidelines to ensure that they are founded on the best science and help people at all stages of life to make informed choices about their drinking. The review is under way and we expect consultation on new guidelines to take place from the autumn.

There have also been government-led initiatives on alcohol and drug prevention in schools. In March 2013, the Department for Education launched a new drug and alcohol information and advice service for schools, providing information and resources on what works and assisting local areas to choose interventions which are right for their circumstances. The Personal, Social, Health & Economic Education Association has produced a revised programme of study based on the needs of today’s pupils and schools which includes alcohol and drug education. In February 2015, Public Health England launched the Rise Above website, helping to empower young people to make positive choices about issues that have a profound impact on their health. In its first two months, the site received more than 250,000 visits.

Since the alcohol strategy was launched, there has been a reduction in the level of alcohol-related violence. Consistent with trends in overall violent crime, there has been a 34% fall in the number of violent incidents perceived as alcohol related since 2004-05. There have

30 Jun 2015 : Column 1974

also been reductions in the level of binge drinking and in the number of 11 to 15 year-olds drinking alcohol. The Government have sent a strong message that selling alcohol to children is unacceptable, and there is now an unlimited fine for persistently selling alcohol to children.

Looking ahead, this Government are committed to building on the successes of the alcohol strategy to tackle alcohol as a driver of crime and to supporting people to stay healthy. When misused, alcohol is undoubtedly a harmful substance, and it is right that its availability is properly regulated and that we tackle the health and crime-related issues that arise when people drink to excess. But for most of the population, alcohol is not a dangerous psychoactive substance which should be subject to the blanket ban provided for in the Bill. I hope that, having prompted this timely debate, my noble friend will be content to keep alcohol as an exempted substance for the purpose of the Bill and consider withdrawing his amendment.

Lord Brooke of Alverthorpe: I would be grateful if the Minister will respond to the points that I made about Palcohol, which is quite different from what we have been debating today.

Lord Bates: The noble Lord is right. We will go back and look again at those Written Answers. We are alert to the risk of powdered alcohol and are actively looking at how best to meet this challenge. However, we are not persuaded by this amendment. We are alert to the problem and are looking at it. I will be happy to meet with the noble Lord, together with officials, if he has new evidence to share with us about how the problem of powdered alcohol is being tackled in other countries and if and how it is being used in this country.

Lord Norton of Louth: My Lords, I am grateful to everyone who has spoken. It has been a useful discussion for getting certain matters on the record. We may have done a public service by finding out what the Opposition’s policy is on this matter.

The Minister’s response—and, indeed, my noble friend Lord Blencathra, to some extent—made my case for me. The point that we have established is that there is no principled case for the exemption. The Minister basically said that it is difficult to ban it, that we are where we are and that it brings in a lot of money to the Treasury. That has to be set against the damage that alcohol misuse causes, as I have detailed and, indeed, as my noble friend confirmed in the data that he placed before us. My noble friends Lord Blencathra and the Minister made the point that I was making—that in relation to alcohol there is an approach of regulate and educate—so why are we not being consistent? That is the issue that I was raising and it is important that it is borne in mind. If we are going to proceed, we have to be clear about why we are doing this. Where is the consistency? What is the intellectual case? As we have heard—as my noble friend confirmed—there is not one.

I am sure my noble friend will be relieved to know that I do not intend to press the amendment, nor is it something that would lend itself to come back to on Report. I am grateful to the noble Lord, Lord Brooke,

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who has raised an important issue which is worth pursuing. I do not intend to pursue the broad issue that I have raised, but I hope that throughout our discussions this will remain the elephant in the room. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Amendment 30

Moved by Baroness Hamwee

30: Schedule 1, page 34, line 29, after “any” insert “other”

Baroness Hamwee: My Lords, I will speak also to Amendments 31, 32, 33 and 34. In view of the debate on the previous amendment, I should declare that some of my friends say that, when doctors ask the question, “Does anyone ever comment on your drinking?”, I should say yes because I drink so little. On the other hand, coffee and chocolate—now, there you are talking.

I am concerned about the definitions in Schedule 1. For example,

“‘caffeine products’ means any product which … contains caffeine, and … does not contain any psychoactive substance”.

I am bemused by this. It must mean “does not contain any other psychoactive substance”, in which case we should say so. We have heard that the Government will be responding to the Constitution Committee. I will not say that the committee was also bemused—that would be very disrespectful—but it pointed out some issues with the relationships between exemptions and so on. We await the response.

The first three amendments are all the same and the fourth one is, in essence, the same as the first three. The last amendment in this group refers to instruments relating to food. The noble Lord, Lord Blencathra, talked about the amount of EU regulation on this issue. I am interested in the words,

“the use of which in or on food is not authorised by an EU instrument”.

Should it not be “an EU or other applicable instrument”, which is what I am suggesting?

Even if there is no secondary legislation or any ruling which applies to this, perhaps we should future-proof it in case there is. I beg to move.

Lord Mackay of Clashfern: My Lords, the “other” must be implied and I see no reason why it should not be expressed. I think the amendment carries itself fairly easily.

Lord Lucas (Con): My Lords, I do not like having a law which states as a fact something which is clearly wrong. I hope my noble friend will therefore accept these amendments, in spirit if not in the exact letter.

Lord Deben (Con): When my noble friend comes to do that, perhaps she will help me with the problem that I have got. I feel that “instrument” is probably not the right word, particularly when used with food. This is one of the ugliest bits of this ugly Bill, and any prettying up of this part would be very helpful.

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5.45 pm

Baroness Chisholm of Owlpen: My Lords, I understand that these are probing amendments which seek an explanation of some of the drafting in Schedule 1. Amendments 30 to 33 broadly deal with the same point, although Amendment 33 is in different terms to the others.

I am hesitant to say this following that which we have just heard but, taking alcohol as an example, Schedule 1 defines an alcoholic product as,

“any product which … contains alcohol, and … does not contain any psychoactive substance”.

The question is why the second limb of this definition does not refer to “any other psychoactive substance”. The answer is logical but, needless to say, not entirely straightforward. It hinges on the distinction between the natural meaning of the term “psychoactive substance” and the meaning given to that term by the Bill.

Under Clause 2, as we now all know, a psychoactive substance is a substance which,

“is capable of producing a psychoactive effect in a person who consumes it, and”—


“is not an exempted substance”.

Alcohol is an exempted substance and so is not a psychoactive substance for the purposes of the Bill. It is therefore not necessary to refer in the definition of alcoholic product to “any other psychoactive substance” because we have already excluded alcohol from the definition of a psychoactive substance. I hope that makes sense.

Amendment 34 touches on a different issue—food additives and flavourings. These are already authorised under the EU legislation so the reference in paragraph 10 of Schedule 1 to an EU instrument—ugly though that may sound—is all that is required. My understanding is that this amendment would expand the paragraph referred to to read “an EU or other applicable instrument”. However, only EU instruments are relevant here and so the additional words are not required. I should perhaps add that we have discussed and agreed with the Food Standards Agency the approach taken in paragraph 10 in Schedule 1.

The noble Baroness suggested that the additional words might provide future-proofing. However, I remind her that there is a regulation-making power in Clause 3 designed with that in mind. In the light of this rather complicated explanation, I hope the noble Baroness will be content to withdraw her amendment.

Baroness Hamwee: My Lords, the Official Report will not record the facial expressions around the Chamber in response to the Minister. I think I follow what has been said, but whether it is a sensible way of writing legislation I rather doubt. Legislation should say what it really means and not leave us struggling to justify such really quite difficult wording. I am tempted to press this to a Division, but we have a lot to get through today so I will not take the time now, but who knows? I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

Amendments 31 to 34 not moved.

Schedule 1 agreed.

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Clause 4: Producing a psychoactive substance

Amendment 35

Moved by Lord Paddick

35: Clause 4, page 2, line 22, leave out “suspects” and insert “thinks”

Lord Paddick: My Lords, I shall also speak to Amendments 36 to 38, tabled in my name and that of my noble friend Lady Hamwee. Amendment 35 amends the offence of producing a psychoactive substance so that a person commits an offence under Clause 4(1)(b) if he or she,

“knows or thinks that the substance is a psychoactive substance”,

rather than if he or she “suspects” it. Amendments 36 and 37 make a similar change to the offence of supply or offering to supply under Clause 5(1)(c) to read that the person “knows or thinks” or ought to

“know or think, that the substance is a psychoactive substance”.

Amendment 38 is probing in nature to delete Clause 5(3) simply to try to elicit from the Minister an explanation of what on earth the subsection actually means.

Police officers suspect while the rest of us think. I am picturing myself with a person I have just arrested—sometimes I dream that I am still in the police; rather, it is a nightmare—in the tape-recording interview room at the police station, when I ask him, “Did you suspect this to be a psychoactive substance?”. Surely the question is whether the suspect thought that it was a psychoactive substance, not whether he suspected it to be one. “Suspect” is rather value-laden, which usually has negative connotations. “If you suspect it, report it”, is the latest from the Metropolitan Police. To us it seems more sensible to substitute “thinks” for “suspects” in the context of these offences.

On Amendment 38, perhaps the Minister can explain what:

“For the purposes of subsection (2)(b), the reference to a substance’s psychoactive effects includes a reference to the psychoactive effects which the substance would have if it were the substance which P had offered to R”,

means, and why it is necessary. I beg to move.

Lord Bates: My Lords, the short answer to the noble Lord, Lord Paddick, and to get to the heart of it, is that we believe that “knows or suspects” is an established term. It has been used in, for example, Section 21A of the Terrorism Act 2000, Section 2(16) of the Criminal Justice Act 1987—

“Where any person—

(a) knows or suspects that an investigation by the police or the Serious Fraud Office”—

and Section 83ZN(4) of the Banking Act 2009, which states:

“(4) A person who knows or suspects that an investigation is being or is likely to be conducted under section 83ZC”.

I simply cite the examples to show that this is a term which has broad acceptance. However, I shall take up the noble Lord’s invitation to put on the record a few words to expand on what is meant by these clauses.

Amendments 35, 36 and 37 seek to make a slight change to the mental element of the offences in Clauses 4 and 5, which relate to the production and supply of

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psychoactive substances. In drafting these offences, we consulted the national policing lead for new psychoactive substances and the Crown Prosecution Service. We believe that the current formulation of these offences is proportionate and fair, capturing those individuals who intentionally produce, supply or offer to supply these dangerous substances while not criminalising accidental behaviour.

To satisfy the mental elements of the production offence, the prosecution must show that the production is intentional, that the defendant knew or suspected that the substance is a psychoactive substance, and that the defendant must either intend to consume the psychoactive substance for its psychoactive effects, or know or be reckless as to whether the psychoactive substance is likely to be consumed by another person for its psychoactive effects. The mental elements of the supply offence in Clause 5 are similar; namely, that the prosecution must show that supplying the substance is intentional, that the defendant knew or suspected, or ought to know or suspect, that the substance is a psychoactive substance, and the defendant must know or be reckless as to whether the psychoactive substance is likely to be consumed by the person to whom it is supplied or by another person for its psychoactive effects.

Amendments 35 to 37 seek to remove “suspects” and replace it with “thinks”. Given the two words’ natural meaning, the requirement of each is very similar. However, we believe that the use of “think” raises the bar too high in terms of what must be proved. Thinking something suggests that a person needs to be “satisfied” or “believe” that something is the case—I am having a moment of déjà vu here with the then Serious Crime Bill, because we went through the mens rea discussions then—which is a higher test than that which we propose. The formula “knows or suspects” is commonly used in the criminal law to describe the mental element or mens rea of the offence. It is a phrase that is well understood. “Knows” demonstrates a true belief. Suspicion is a subjective test and need not be based on reasonable grounds, but there must be a possibility which is more than fanciful that the relevant facts exist. The courts have held that a “vague feeling of unease” would not suffice to prove suspicion, but the suspicion need not be “clearly” or “firmly” grounded and targeted on specific facts or based upon reasonable grounds.

The Government considered whether the mental element should extend only as far as “knows”, but we concluded that this could create an inappropriately high bar for prosecutors to overcome, with defendants arguing that they did not know for certain that the substance they were producing or supplying was a psychoactive substance. Given, as I have said, that a “knows or suspects” test is commonly used in the criminal law, I am satisfied that it is well understood by investigators, prosecutors and defence lawyers. I am therefore not persuaded of the case for change.

Under Clause 5(2) there are two limbs to the offer to supply offence. First, person A must offer to supply a psychoactive substance to person B. The second limb requires that person A knows or is reckless as to whether person B, or some other person, would, if a substance was supplied in accordance with the offer,

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be likely to consume the substance for its psychoactive effects. I realise that these are complex legal terms, but I have to say that they probably fit well with a number of cases that I have personally looked into. I am thinking of head shops selling psychoactive substances in bright packaging. To avoid prosecution, the label states that the substance is plant food or a research chemical that is not for human consumption. Clearly, that is what we are aiming to get at so that there is no loophole. Given the way this second limb operates, no offence would be committed if the substance that was in fact supplied was not a psychoactive substance. It will come as no surprise to noble Lords that not all drug dealers are entirely honest. An offer may be made to supply a psychoactive substance, but the person making the offer may intend to defraud the recipient by passing off some benign white powder as the real thing. Indeed the person making the offer may not intend to supply anything, but simply take the money and run. Clause 5(3) is intended to catch those circumstances. What matters here is that the defendant made an offer to supply a psychoactive substance and should not be able to evade prosecution under Clause 5 on the grounds that he or she did not intend to fulfil their side of the deal.

I accept the probing nature of the amendment and I hope that the noble Lord will find that these explanations, even if they have not entirely satisfied him, have allowed us to put some additional remarks on the record that may be helpful in understanding the Government’s intent in bringing forward this clause.

6 pm

Lord Lucas: My Lords, I thought that that was a superb explanation but I want to tax the Minister, if I might. There are many ordinary substances—glue being the obvious one, but there are a lot of other things such as spruce logs, which you can burn—which you can use in extremis in the absence of other things for psychoactive purposes. Usually, a supplier of these things would not have to ask themselves whether I intended to use the tube of UHU for psychoactive purposes. When this law is enforced, what rules will apply to a retailer when they are selling something? Most plastic packaging when burnt or heated will produce fumes with a psychoactive effect. What does the retailer have to do not to be reckless? If they think that I am someone who might do that sort of thing, does that qualify? If I sell something to someone, not particularly caring what they will use it for, and they go and kill themselves by using it for psychoactive purposes, am I going to be come after? What are the rules? What do I have to do as a retailer of perfectly ordinary things if there is a potential psychoactive use for them?

Lord Bates: My noble friend is correct in the sense that there are rules that exist relating to solvent abuse, the use of solvents in that regard and protections for retailers. However, we are very clear here as to the target audience for the purpose of this measure: individuals who are seeking to manufacture psychoactive substances for the purposes of being consumed by people for their psychoactive effect, or to supply, import or export. We do not believe that they will come into the categories

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of what would be appropriate retail activity. My noble friend makes a wider point, though. I will reflect again with officials on his remarks in the

Official Report

, and if I can expand upon that point to provide some additional guidance I will certainly write to him and copy it to other Members of the Committee.

Lord Paddick: I thank the Minister for his explanation, on the basis that I am not a lawyer. I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

Clause 4 agreed.

Clause 5: Supplying, or offering to supply, a psychoactive substance

Amendments 36 to 38 not moved.

Clause 5 agreed.

Amendment 39

Moved by Lord Howarth of Newport

39: After Clause 5, insert the following new Clause—

“Possession for personal use

Possession for personal use of any psychoactive substances, including psychoactive substances hitherto controlled under the provisions of the Misuse of Drugs Act 1971, is not a criminal offence.”

Lord Howarth of Newport: My Lords, this amendment proposes that the possession for personal use of any psychoactive substances, including psychoactive substances hitherto controlled under the provisions of the Misuse of Drugs Act 1971, is not a criminal offence. We touched quite extensively on this issue in the debate on Amendment 23 in the name of the noble Lord, Lord Paddick, but his amendment ranged considerably wider. I hope that the Committee will be willing to focus more tightly on the specific issue that is expressed in the proposed new clause.

In recent years, some 25 countries have removed criminal penalties for personal possession of some or all drugs. Now, for the first time, Her Majesty’s Government of the United Kingdom are tiptoeing towards the decriminalisation of possession for personal use because they have omitted, quite deliberately, to criminalise such possession where psychoactive substances are concerned, as defined in the Bill. However, that raises the question of why they are stopping at new psychoactive substances and, of course, the substances that are exempted in Schedule 1. Why do they not now proceed to decriminalise possession for personal use of small amounts of drugs controlled under the Misuse of Drugs Act 1971? The policy is inconsistent and confusing. As such, I fear that it is liable to damage respect for the law, and the law in respect of drugs is already not much respected as it is.

Why does the Home Office judge it appropriate to criminalise young people wholesale? I am advised that in the period 2009 to 2013, 59,742 young people under the age of 20 were criminalised for possession of controlled drugs—something like 29% of young people in that age group who received a criminal record.

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Such an approach is clumsy, to say the least, and I submit that it is very damaging to those young people: the short-term and long-term effects of having a criminal record weigh heavily on their educational and employment prospects and their prospects of being able to obtain credit. It is also expensive for the Exchequer. The continuation of this criminalisation appears to ignore the findings of the Home Office’s own study,

Drugs: International Comparators

, which found that the relative toughness of the prohibitionist approach makes no difference to actual consumption.

Like it or not, the recreational use of drugs is widespread in our society. Indeed, I would say that in certain sections of society it is normal. I do not know whether we are welcoming the Minister on his return from a fact-finding mission to Glastonbury at the weekend; he may perhaps have been invited by the organisers in his official ministerial capacity or perhaps he went incognito, possibly not even wearing his suit. I like to think that he was accompanied by Lady Bates and that she may have been bearing in her hand at least a small posy of flowers, because it could be the last time under this legislation that he will have the opportunity to give her flowers—then he will have to default to his position of presenting her with chocolates.

If the Minister was at Glastonbury, no doubt he will have ignored the vapourings coming from left field from such figures as Billy Bragg and Charlotte Church, but he will not have failed to notice that significant numbers of young people there were consuming psychoactive substances. Possibly he regards all of them as lost souls. Still, he may have taken some satisfaction from knowing that this will be the last time that drugs will be consumed at Glastonbury because, through the virtues of this legislation, he will have completed the circle of prohibition: it will be impossible for them legally to obtain psychoactive substances in future. Such will be the zeal for enforcement of the police and other authorities, prioritising this prohibition alongside their duties to deal with illegal immigration and threats of terrorism, he can be confident that next year no drugs will be consumed at Glastonbury—unless, perhaps, psychoactive substances descend like manna from heaven on to the fields of Glastonbury, because that is still a possibility. Miracles do occur, and it is not impossible that psychoactive substances will continue to be consumed at Glastonbury and other festivals.

We need a realistic and constructive approach to this matter. The constructive policy is to decriminalise the possession of all drugs for personal use—to legalise, to regulate and, as we have noted in earlier debates, to have a serious campaign to inform and educate people about the realities and dangers of drugs. How helpful it would be if we could distinguish legally between the recreational use of drugs and problem usage. Through decriminalising, I believe that we could get more people, more quickly into more effective help and treatment. This is the difference between the Swedish approach and the Portuguese approach, which we discussed earlier. Decriminalisation, as recommended in the proposed new clause, would release the police from so much futile activity.

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I am told that Her Majesty’s Government are spending something of the order of £1.5 billion a year on drug law enforcement. The impact assessment for the Bill, at paragraph 75, anticipates that the costs of the new measures to the public sector will be only £60,000 in year 1 and £50,000 a year thereafter. This is a joke: all the new offences created and all the enforcement activities legislated for in the Bill will cost a lot of money. We would do better to switch that expenditure and other expenditure into a real drive on information, education, youth work, healthcare through Public Health England and doing very much better about drugs in prisons.

Should we be condemning or should we be helping? In our society, there is no consensus as to whether the use of drugs is a crime, a vice, a weakness, an illness, an adventure, an act of rebellion or a recreation. It is all these things to different people at different times. But if we cease treating it as a crime, we will, as I have said before, greatly reduce the alienation of so many young people from politics and government, and we will be better placed to help people in need.

The noble Baroness, Lady Meacher, asked me to convey her apologies to the Committee that she is unable to speak to her Amendment 46. She has had to go because she is hosting a reception for Leonard Cheshire Disability, which is being attended by the Secretary of State. I beg to move.

Lord Paddick: My Lords, I rise to support Amendment 39 and to speak to Amendments 45 and 52, which are in my name and that of my noble friend Lady Hamwee. I agree with some of the remarks made by the noble Lord, Lord Howarth of Newport. However, I got a touch of déjà vu because I think I made out the case for the decriminalisation of drugs when I spoke to Amendment 23. I will not go over that again.

Amendment 45 clarifies the offence of intentionally importing a psychoactive substance under Clause 7(1)(a) to exclude the importation if it is,

“for the person’s own consumption”.

Amendment 52 makes a similar change to the definition of “prohibited activity”. It would amend Clause 11(1)(d) to read,

“importing such a substance other than for the person’s own consumption”.

As we have heard, the Government do not intend to make possession of psychoactive substances under this Bill a criminal offence. This Bill is targeted at those who supply such substances. While it is therefore reasonable and logical for the importation of such substances for sale or supply to also be an offence, it seems disproportionate to make importation solely for one’s own consumption an offence.

What will happen if this Bill becomes law is what happened in Ireland when similar provisions were enacted. People who currently buy their psychoactive substances from head shops will instead buy them from street drug dealers or, more likely, buy them online. Under this Bill, the police will be able to close down UK-based websites, forcing users to buy their drugs from websites overseas. When they buy their drugs from such websites, they will be guilty of importing psychoactive substances, even if their only intention is to consume the drugs themselves. It seems inconsistent for the

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Government not to criminalise possession of psychoactive substances under this Bill but still to criminalise people for trying to possess them in this way.

6.15 pm

Lord Rosser: My Lords, as the noble Lord, Lord Paddick, said, we have had the debate on decriminalisation already today. I can only repeat our position that we do not believe that we should be moving to decriminalise possession of a wider range of substances currently controlled by the Misuse of Drugs Act 1971 through an amendment to the Bill, which is designed to address a specific issue that has developed very quickly over the last few years in respect of new psychoactive substances as defined in the Bill. As the noble Lord said, another amendment in the group seeks to provide that importing new psychoactive substances should not constitute an offence where the substance is for the individual’s own consumption. That issue was raised at Second Reading.

We will listen with interest to the reply from the Minister, since there is a need to have a very clear definition of which activities, if any, that might be involved in achieving personal possession of new psychoactive substances for personal consumption, which is not an offence under the Bill, are or are not also covered by the non-offence provisions in the Bill. To pursue the point made by the noble Lord, Lord Paddick, will the Minister say whether the reference in Clause 8 to a person committing an offence if they intentionally import a substance for their own consumption is intended to cover the situation where the substance is ordered online from outside the country? What happens if the individual concerned, in ordering the substance online, is not aware of whether it has come from within or outside this country, and it is subsequently proved that it has come from outside this country? Is that person guilty of an offence under the Bill?

Lord Bates: My Lords, I thank the noble Lord, Lord Howarth, for introducing this amendment. The amendments in this group relate to the personal use of such substances. Let me assure the noble Lord at the outset that the Bill does not make possession of a psychoactive substance for personal use a criminal offence. Similarly, it is not an offence to possess for personal use a drug subject to a temporary class drug order. In that sense, the current process is consistent with the way in which we have tackled such issues in the Misuse of Drugs Act, in that the intention is to catch the suppliers and manufacturers of the products.

The noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, whose apologies we note, have argued that the Bill is internally inconsistent in making it an offence to import a psychoactive substance for personal use but not criminalising personal possession. I hope I can persuade the Committee that this is not the case. The very principle of this Bill, as recommended by the expert panel, is to tackle the supply of these substances. Given that the vast majority of these substances are imported from abroad, clearly, if we are to tackle the supply, we need to ensure that we have in place a robust importation offence and that the Border Force has sufficient powers to effectively stop these substances crossing the border. On that point, I advise the Committee

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that the Government intend to table further amendments to ensure that the Border Force can access the powers under the Customs and Exercise Management Act 1979 when it intercepts psychoactive substances coming into the UK.

We cannot have a robust importation offence if we permit small quantities of psychoactive substances to be imported for personal use. We want to stop all these dangerous substances entering the country, not facilitate their use. The expert panel was clear that the Bill should focus on the supply of these substances and target all sources, even social supply, which can be a gateway for people into regular drug use. Any supplier of a new psychoactive substance is contributing to the overall drugs problem.

The substances caught in this Bill are deliberately being treated differently from the drugs controlled by the Misuse of Drugs Act 1971. The 1971 Act controls drugs where we have expert evidence of specific harms and therefore apply the full ban on possession and supply for public protection. For those not—or not yet—controlled under the 1971 Act, we are targeting the trade alone. However, allowing possession of a psychoactive substance is one thing; deliberately weakening the controls by creating a loophole that allows the importation of small quantities is something else, both in principle and in practice.

I have already outlined one risk in allowing importation of personal quantities—that of creating the possibility for individuals to import multiple packages of small quantities of psychoactive substances, which on their own are consistent with personal use but could enter the supply chain when combined. There is a raft of practical challenges with this approach: how much would constitute personal use? Would it cover all substances? Would you allow someone to import a year’s worth of substances for their personal use? That could, depending on the substance, be a significant quantity.

Another concern would be the enforcement challenges that this new approach would create. A blanket importation ban simplifies enforcement by the Border Force: any psychoactive substance found at the border and which is evidently intended for human consumption can be seized and destroyed, unless it is an exempted substance or for an exempted activity. Allowing smaller packages for personal use would impose significant demands on the Border Force, requiring it to investigate the importation in each and every case to determine whether the seized substances are for onward supply or personal use. It would simply be unrealistic and an unnecessary burden to put this measure in place.

On the website question, which is a fair point, it should be said that there were two effects of the Irish experience: one was immediately to close down the head shops in the Republic of Ireland; the other was to allow the Government to take down the websites that were supplying these substances, which were on a Republic of Ireland domain. On the offences committed when there is the intention to import, if you can prove that you did not know the website was overseas and that you were importing, you would not have intentionally imported. Is that clear? Perhaps it is just not clear to me. Let me read it again: on the offences committed when it is intentionally imported, if you can prove that

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you did not know the website was overseas when you were importing, you would not have intentionally imported. Yes, that is very clear.

Finally, I should add that the importation of psychoactive substance offences in both Ireland and Australia also apply to all quantities imported: there is no exemption for personal consumption. Amendment 52 would stand or fall with Amendment 45, as it seeks to make a consequential amendment to the list of prohibited activities to replicate the change in the importation offence.

I hope that I have been able to provide some comfort to the noble Lord, Lord Howarth. I suspect I may have been unable to persuade the noble Lord, Lord Paddick. However, having given the issue a good airing, I hope that he and other noble Lords will not feel the need to press their amendments.

Lord Howarth of Newport: My Lords, the groupings were perhaps not quite right, at least as far as Amendment 39 is concerned. That is probably my fault, but I am grateful to noble Lords for their participation and presence in this short but worthwhile debate.

The Minister’s charm is such that he would almost persuade the Committee to agree to what is palpably bad legislation, and I congratulate him on his manner at the Dispatch Box. In seeking to refute the proposition put forward by the noble Lord, Lord Paddick, he said that we could not have a partial relaxation of a ban on importation for personal use because it is very important that the Border Force has powers—those powers will be further supplemented in amendments to come—to ensure that, in the phrase I think he used, all these dangerous substances do not get through. He went on to say that there is also the Misuse of Drugs Act, which would allow the proscription of individual substances where there is evidence that they are dangerous. There is quite a tension, if not an inconsistency, between those points. We can think about that a little further.

As to the practicalities for the Border Force, I hope that at some point in proceedings the Minister will be able to give us some statistics about the number of packages that enter this country. We all know that there has been an enormous increase in mail order, online retailing. He mentioned that the Irish-based websites had been closed down by their legislation, but we know that the Irish have become big consumers of new psychoactive substances, even more than they were before the prohibition legislation was brought in. How are they getting them? Where are they coming in? What means are there to prevent the entry of all these packages, which Postman Pat then takes up the garden path and pops through the front door? I cannot see how the Border Force will inspect all these packages. I understand that a few years ago, it was able to inspect only some 2% of shipping containers. The Minister is landing the Border Force with a completely impossible task.

Lord Bates: That is one of the reasons why the Republic of Ireland Government are pleased that we are following their lead in this regard. Naturally, when you make a blanket ban, as they have done, people

30 Jun 2015 : Column 1986

find it very easy simply to cross the border—which, of course, is not really there—to obtain these supplies in the north of Ireland. I can give the noble Lord some quick statistics. More than three and a half tonnes of new psychoactive substances were seized by Border Force officers in 2014-15—a 75% increase on the previous year. Officers undertake targeted physical checks, supported by technology such as X-ray and new portable FirstDefender devices, to intercept suspected packages out of the 250,000 parcels that come through the UK’s depots.

Lord Paddick: Before the noble Lord withdraws his amendment, can I just say that surely there must be a way to allow all these substances—or as many as are discovered—to be confiscated by the Border Force without making importation for personal use a specific offence? Surely they can be treated as two separate things. No doubt we can discuss that during the Bill’s further stages.

Lord Bates: We can, but the whole purpose of the legislation is to try to close the loopholes. As I explained, if there was a loophole that meant you could import for personal use, how do you actually track that? Whether it is one packet or multiple packets, what is an appropriate amount for personal use? That makes it very difficult for Border Force officials. We are taking a blanket approach, as we have with other substances, because it gives clarity to the purpose of the policy.

Lord Howarth of Newport: The noble Lord has provided us with some helpful information. I am still left puzzled as to how he thinks people will obtain these psychoactive substances, which it will not be a criminal offence to possess for personal use. Either they will have chemistry sets and synthesise them themselves, or his system of border controls and so forth will fail to work. Anyway, I am grateful for the thoughts that have been offered and the information that has been provided, and I beg leave to withdraw the proposed new clause.

Amendment 39 withdrawn.

6.30 pm

Clause 6: Aggravation of offence under section 5

Amendment 40

Moved by Lord Rosser

40: Clause 6, page 3, line 16, leave out “or B” and insert “, B or C”

Lord Rosser: My Lords, a succession of inspection reports, covering Highpoint, Bristol, Liverpool and Deerbolt prisons among others, have shown high levels of use of synthetic cannabis, known by inmates, as I understand it, as “Spice” or “Black Mamba”. These legal drugs are not identifiable, so I am told, by more than a handful of sniffer dogs, nor through mandatory drug testing. Spice can cause high levels of addiction and there have been reports of debt, bullying and violence associated with its use becoming more widespread in prisons.

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The government response to the expert panel report included a commitment to improving information about new psychoactive substances in the prison estate. The Minister referred to this issue in his letter of 15 June. However, the purpose of the two amendments that my noble friend Lord Tunnicliffe and I have tabled in this group is to make supplying, or offering to supply, a psychoactive substance in a prison an aggravating feature of the offence of supplying, or offering to supply. As we know, the Bill already makes it a statutory aggravating factor if the offence took place at, or in the vicinity of, a school. Surely another area of significant concern must be our prisons, where there are certainly some fairly unpleasant individuals, but there are also many potentially vulnerable people. To seek to supply, or offer to supply, a psychoactive substance within our prisons—there are different ways in which such substances get inside, whether through visitors, rogue staff, being thrown over the wall or sent in parcels or goods—is clearly making a difficult environment, with significant numbers in a relatively small space, even more awkward for both staff and inmates. I hope the Minister will share the view that supply, or offering to supply, in a prison should be an aggravating feature of such an offence, which is the purpose of our amendments. We await with interest his response to this and the other amendments in this group.

In conclusion, it was stated in the other place:

“Thirty-five per cent of prisoners have a drug addiction and 6% acquire that addiction while in prison”.

The Secretary of State for Justice said in response to that comment that,

“drug addiction is one of the principal factors that lead individuals to commit crime. It is also the case that there is an unacceptable level of drug use, both of illegal drugs and so-called legal highs, in our prisons”.—[

Official Report

, Commons, 23/06/15; col. 737.]

If that is the Secretary of State’s view—and I do not think that too many people would be surprised that he has expressed it—surely this is an opportunity to make supplying the new psychoactive substances, or offering to supply them, an aggravating feature of the offence in addition to what is already provided for in the Bill, which covers the situation where the offence takes place at, or in the vicinity of, a school. I beg to move.

Lord Kirkwood of Kirkhope: My Lords, in following the commendably concise remarks of the noble Lord, Lord Rosser, I wish to speak to Amendments 41, 42 and 108, standing in my name and that of the right reverend Prelate the Bishop of Bristol. These amendments are self-evident and seek to refine and extend protection for children under Clause 6. The provenance of these amendments is the Children’s Society, which, as a result of the important work that it does protecting children, has made a compelling case that these factors need to be inserted in the Bill as additional aggravating factors.

Basically, I am asking the Committee to amend the Bill to make the supply of psychoactive substances to children under the age of 18, or in the vicinity of premises where vulnerable children reside, an aggravating factor of an offence. The evidence indicates that psychoactive substances are now increasingly being used to groom children who are in vulnerable situations and environments. As the Government have already

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recognised that the school environment needs to be protected, this established principle would merely be extended a little by accepting the amendments suggested by the Children’s Society. It has provided some, I hope, very helpful definitions of accommodation for vulnerable children, which I think are applicable to England and probably Wales. I do not know whether they are entirely appropriate for Scotland, but I would like the Minister’s advice on that. There are three sets of circumstances where children are particularly exposed to these situations—residential care, as defined by people in supported accommodation, and 16 year-olds and 17 year-olds who find themselves homeless. I would be interested to hear about the experience of the right reverend Prelate in this regard as I know that the church does valuable work in this area. He may be able to expand on some of the background circumstances that caused the Children’s Society to promote these amendments.

Amendment 108 seeks to apply these proposed aggravating circumstances to other controlled drugs under the 1971 legislation. As I understand it, at the moment there are merely non-statutory aggravating factors in the 1971 provisions. If Amendment 108 found favour with the Minister, I think that we would be able to ensure the same protection from the courts, as they would be required to take account of aggravating features in considering any offence.

The Lord Bishop of St Albans: My Lords, my colleague the right reverend Prelate the Bishop of Bristol is very sorry that he cannot be here, but I have spoken to him and am keen to add a few words of support for these amendments.

Those who work with children, young people and vulnerable adults know only too well the risks associated with residential care. In 2012, of the 16,500 children who were found to be at high risk of sexual exploitation, more than a third—35%—were children living in residential care. It seems to me that these amendments would add additional strength to the general direction of the Bill, which we on these Benches happily support. We also draw on the research and briefing of the Children’s Society.

Places which care for children, young people and vulnerable adults in either residential or supported care facilities can easily become targeted by people who, via grooming and addiction to psychoactive drugs, use control to lead children and vulnerable adults into other very serious kinds of abuse. I note the point that the noble Lord made that accepting the amendment would put this offence on the same footing as that of supplying drugs outside a school, which the Bill already makes an aggravating factor.

My colleague the right reverend Prelate the Bishop of Bristol told me that last year, in his own city of Bristol, 13 men were convicted of a string of sexual offences involving sexual abuse, trafficking, rape and prostitution of teenage girls as young as 13 years old. Their tactics were clear: in return for drugs and alcohol, young girls were forced to perform sexual acts with older men. Much more could be said but I want to support these amendments because, as I say, they would help this vulnerable group to receive additional protection.

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Lord Blencathra: I must say to my noble friend the Minister that I have considerable sympathy with the amendments in the name of the noble Lord, Lord Kirkwood of Kirkhope. This seems to be entirely the same sort of situation as providing drugs outside schools—perhaps even more so. I accept the argument that, per head of population, the people in what I would call a children’s home—I do not know the modern, politically correct term for a children’s home, but those in residential care or whatever—are more vulnerable than the generality of kids in schools. As the right reverend Prelate has just said, some of the children in there will already have had problems of potential criminality or being vulnerable.

I discovered at the Home Office that once you put children together in a residential place like that, they are not locked up at night; in the main, they are free to come and go, and then they are liable to be preyed on by every sort of predator in sight, for sexual abuse and drug use as well. If my noble friend the Minister is going to reject the amendments at this stage, I hope he and his officials will give them very careful consideration because they are an absolutely sensible, logical extension of the policy towards selling drugs outside schools to children. These children are even more vulnerable.

Lord Mackay of Clashfern: My Lords, I support both sets of amendments, on prisons and vulnerable children. It strikes me that these are quite clearly aggravating factors and we should do everything we can to prevent these drugs being introduced to prisons and to vulnerable children.

Baroness Hamwee: My Lords, Clause 6, I believe, replicates almost exactly the provision in the Misuse of Drugs Act. Without commenting on either of the areas of concern, although I quite understand the concern, my question to the Minister is: have the Government had any advice about extending the list of aggravating factors generally? Right at the start of Committee we raised the issue of a review of the Misuse of Drugs Act. This is the sort of thing that could well come within the scope of a review.

The Minister will explain to the Committee in a moment the one word which would be different from Section 4A of the Misuse of Drugs Act and that is in his Amendment 43 to Clause 6(6). The MDA talks about delivering a controlled drug to a third person. Like the original drafter of this provision, I would have thought that referring to a psychoactive substance is logical and if we take out the word “psychoactive”—unless we are going to be told that that is what we have to read into it—it would seem to mean that if someone under 18 delivering anything to another person in connection with an offence falls within this. But I had better not further anticipate what we will be told about this.

Lord Bates: My Lords, these are two very important areas—prisons and children—and I am grateful to the noble Lords, Lord Rosser and Lord Kirkwood, for introducing these amendments.

I will put some remarks on the record but, given the views that have been expressed around the Chamber regarding children, I will undertake between Committee

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and Report, if the Children’s Society and noble Lords were interested and the right reverend Prelate was minded to join us, to arrange for us to meet the Children’s Society, with officials, and really examine this part of the Bill to see whether this is something that we need to look at in more detail. I will put some general remarks on the record but that is a commitment that I am happy to give in this important area.

I begin by acknowledging the problem that new psychoactive substances are causing in prisons, and take this opportunity to reassure noble Lords that a wide range of work is currently under way within the National Offender Management Service, including clear and unequivocal guidance to prison governors and staff about the dangers posed by these substances. There is a widespread prison media campaign, including the use of prison radio, to ensure that all prisoners are aware of the very serious risks associated with using new psychoactive substances. A National Offender Management Service steering group has recently been established to deliver actions on supply reduction; demand reduction; data and research; and messaging and communications.

6.45 pm

There has also been a strong legislative response, with the Serious Crime Act creating a new offence of throwing or projecting an item over a prison perimeter. This new offence was designed in particular to tackle the supply into prisons of new psychoactive substances and will go some way to tackling the availability of these substances on the prison estate. Furthermore, the National Offender Management Service has worked and will continue to work closely with the Home Office on this Bill, which we expect to have a marked effect on tackling the supply and use of new psychoactive substances in prisons.

Amendments 40 and 44 seek to make the supply of a psychoactive substance on prison premises an additional aggravating factor when a court sentences an offender for an offence under Clause 5. Similarly, Amendments 41 and 42, tabled by the noble Lord, Lord Kirkwood, seek to extend the circumstances where Clause 6 is to apply. In this instance, the supply of a psychoactive substance on or in the vicinity of accommodation where a looked-after child resides or to a person under the age of 18 would constitute an aggravating factor.

Clause 6 replicates an equivalent provision in Section 4A of the Misuse of Drugs Act, which seeks to provide additional protections to children from the dangers of controlled drugs. In its current form, this clause provides similar protections with regard to new psychoactive substances by creating an aggravated offence which would apply in two circumstances. The first is when someone supplies, or offers to supply, a psychoactive substance,

“in the vicinity of a school premises”,

one hour before or after they are used by a person under the age of 18. The second is when a person causes or permits a child or young person under 18,

“to deliver a psychoactive substance to a third person, or … to deliver a drug-related consideration”—

that is, some form of payment—to himself or herself, or to a third person.

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It is right that the courts should look particularly seriously upon an offence under Clause 5 committed in these circumstances and take this into account when sentencing the offender. This is not to say that the court would not also take a dim view of other circumstances where a Clause 5 offence is being committed. The noble Lords, Lord Rosser and Lord Kirkwood, are right to highlight other scenarios where a person convicted of the supply offence ought to be treated more severely compared with other cases.

That said, one challenge presented by the amendment in the name of the noble Lord, Lord Kirkwood, is that while an offender supplying drugs would be in no doubt that he or she was operating near a school, the same could not necessarily be said of a residential children’s home or other premises to which Amendment 42 would apply. Such premises may not be clearly identified as a children’s home and could look like any other house in a residential street. Where that is the case, it would arguably be unjust to impose a higher sentence in circumstances where the offender could have no knowledge that the aggravating factor was engaged.

Lord Blencathra: The bad guys know where the children’s homes are, even though they may not be marked on the map or have a sign up. The people we are dealing with are clever drug dealers and if they wish to make drugs available to children in a children’s home, they will be able to do so. I suggest to my noble friend that the lack of knowledge of where the home is is not relevant.

Lord Bates: Of course, and I remind my noble and learned friend Lord Mackay of Clashfern that, within the sentencing guidelines, there would be the ability for some of these factors to be spelled out. The awareness would be there and I am very sensitive to that. Having used the case of Canterbury, where one of these head shops was within 100 yards of the King’s School—just across the road from it—that is precisely the type of circumstance we are trying to get to. But in the normal way it would be open to the sentencing court, having regard to the relevant sentencing guidelines, to take any other aggravating factors into consideration. In updating its guidelines, the Sentencing Council in England and Wales may wish to reflect on the points raised in this debate. I might add that any prisoner who commits any offence under the Bill could be subject to additional punishments and restrictions through existing prison disciplinary procedures. For the purpose of the Bill we should be guided by the equivalent provision in the Misuse of Drugs Act, notwithstanding Amendment 108, which seeks to bring the 1971 Act into line with Amendment 42.

There is also one government amendment in this group. Amendment 43 is a technical amendment that seeks to correctly reference the second aggravating offence in Clause 6 with the corresponding offence in Clause 5. Clause 6 creates two aggravating conditions which a court must consider when passing sentence. It states:

“Condition A is that the offence was committed on or in the vicinity of school premises at a relevant time … Condition B is that … the offender used a courier who, at the time the offence was committed, was under the age of 18”.

Amendment 43 relates to condition B.

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Clause 6(6)(a) provides that a person uses a courier if the person,

“causes or permits another person … to deliver a psychoactive substance”.

However, and rightly, a person can commit an offence of offering to supply a psychoactive substance in Clause 5(2) without there being any psychoactive substance in existence. The offence would be committed if an offer was made to supply a psychoactive substance but a non-psychoactive substance was in fact supplied. As we discussed in the previous group, it could be a packet of some benign white powder being passed off as a psychoactive substance. In such a case the requirement in Clause 6(6)(a) would not be met. Amendment 43 simply ensures that condition B operates as intended.

I hope that I have been able to reassure the noble Lord, Lord Tunnicliffe, that the Government are actively tackling the issue of new psychoactive substances in prisons and that, on that basis, he will be content to withdraw his amendment. Within that, I extend to the noble Lords, Lord Rosser and Lord Tunnicliffe, the same offer which has been extended to other Members: to have that meeting with the Children’s Society to explore this area and, having heard its experiences, to consider whether further action is needed.

Lord Kirkwood of Kirkhope: I hope I can say on behalf of the Bishops’ Bench that the offer of a meeting is welcome. If we can do that in association with the Children’s Society, that meets our immediate request and I would be happy to operate on that basis.

Baroness Hamwee: My Lords, if the correct way of dealing with subsection (6) is just to refer to the delivery of a substance, are the Government considering changing Section 4 of the Misuse of Drugs Act—I do not have the Act with me—to take out the reference to a controlled drug? I do not expect an answer at this point but I am not immediately persuaded that they should be different.

Lord Rosser: Before I respond on what I am doing with the amendment—I shall be withdrawing it; I do not want to appear to suggest that I am going to do something else—can the Minister say whether the Ministry of Justice is interested in seeing this become an aggravating feature in prisons?

Lord Bates: As one would expect, the justice department will have been consulted and was part of the discussions in preparing the Bill. I note the reference that the noble Lord made to the remarks of the Justice Secretary in another place. I will certainly reflect on those and make contact with the Ministry of Justice again to ensure that its views are fully taken into account in the approach which I have outlined. Given that it has lead responsibility for prisons policy, I would expect those to be exactly as I have said.

Lord Mackay of Clashfern: Before the noble Lord says what he wants to do about his amendment, does not the fact that certain matters have been selected for aggravation make it somewhat more difficult for a judge to take a factor which is not made specific and give it the same weight? It slightly worries me that if you do not mention prisons and vulnerable children,

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while a section in the Bill does mention specific aggravations, that will tend to reduce the possibility of the two factors that we are interested in being regarded as aggravations. I assume that the judges’ reaction would be, “Parliament has not thought to mention these, and therefore it is not really quite so serious”. Whereas if Parliament has mentioned it—and prisons strikes me as an issue of particular importance—that is something we should emphasise for the judge who has to deal with this matter.

The Lord Bishop of Peterborough: My Lords, I support the aggravated category for prisons and the particularly vulnerable children who are, in one way or another, in care. I am very grateful for what the Minister said about having a meeting on children in care. That is good and I am happy to accept it, but from my fairly regular visiting of prisons in my diocese—I have visited the four that were there but two of them are now closed—I know that the great majority of prisoners are themselves highly vulnerable and need to be treated as such. It seems that so many young men and young women find themselves in prison having started off with drugs in one way or another. They have been used and abused, often as vulnerable young people, and end up in prison still as relatively young people. They are extremely vulnerable to exploitation through drugs, so this really should be another aggravated category.

Lord Bates: In response to those two points, I think I am right in saying that where we came from on this was to try to get consistency with the Misuse of Drugs Act 1971, where “children” is stated as an aggravating factor. We are therefore continuing that into the present. There will come a point where if you then add in certain types of locations and places, where do you stop? Will the courts then be unsure as to what the Government were trying to tackle in introducing the legislation? There is a duty on sentencing judges to follow sentencing guidelines, so the point can be dealt with through that route. We have certainly tightened up the laws with regard to drug use in prison through the Criminal Justice and Courts Act 2015 and the Serious Crime Act 2015. As I say, I certainly understand the comments that have been made and I will reflect particularly on the point about children between now and Report, with the assistance of that meeting.

Lord Rosser: The Minister said that he would reflect particularly on the point about children. Is he saying that he will reflect on the prisons point? He worded it in such a way that it cast doubt as to whether he would.

Lord Bates: I am always learning that the problem with legislation is when you mention one factor and have not necessarily mentioned another. I did not particularly mention it. The specific suggestion I made to the noble Lord, Lord Rosser, was that I would discuss the points which he raised with colleagues in the Ministry of Justice. I will share the remarks he has made in Committee on this amendment with them. That was the offer I made in respect to his amendment. It was in respect to the others that I agreed to the meeting.

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7 pm

Lord Rosser: We would like to know where we stand before Report, because if we are drawing a blank, it is something we would certainly wish to consider pursuing on Report. We would not wish to do so if there was some movement on it. I noted the comments about bringing this into line with the Misuse of Drugs Act 1971. One might say that the Bill is not fully in line with the Misuse of Drugs Act, particularly over the offence of possession, for example. I am not sure that arguing that, on the one hand, you have to bring this in line with the Act but that on the other there is a clear distinction is the most consistent or best argument to use, quite frankly, on this issue.

I will of course read the Minister’s reply in full, since I appreciate he said quite a few things and I am not satisfied that I necessarily took them all on board. I will read Hansard carefully. I also thank all noble Lords who have participated in the debate. One thing I noticed was that, in his reply, the Minister made reference to action that can be taken against the prisoners involved with these drugs, but of course the issue is about the drugs getting into prisons, which can involve them coming in with parcels or visitors. I appreciate that once the drugs are in the prison they are being distributed by prisoners, which is where the bullying and harassment can come in, but there is also the issue of who is helping to get them into prisons in the first place and whether that should be an aggravating feature. I note that the Minister has said he will raise this with the Ministry of Justice. If he could indicate where we stood ahead of Report, that would be extremely helpful indeed. In the light of that, I beg leave to withdraw my amendment.

Amendment 40 withdrawn.

Amendments 41 and 42 not moved.

Amendment 43

Moved by Lord Bates

43: Clause 6, page 3, line 32, leave out “psychoactive”

Amendment 43 agreed.

Amendment 44 not moved.

Clause 6, as amended, agreed.

Clause 7 agreed.

Clause 8: Importing or exporting a psychoactive substance

Amendments 45 and 46 not moved.

Clause 8 agreed.

Clause 9 agreed.

Clause 10: Power to provide for exceptions to offences

Amendments 47 to 49 not moved.

Clause 10 agreed.

Amendment 50 not moved.

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Amendment 51

Moved by Lord Paddick

51: Before Clause 11, insert the following new Clause—

“Licences for sale of psychoactive substances

(1) The Secretary of State shall within one year after the passing of this Act make regulations for the licensing of—

(a) specified persons;

(b) specified premises;

to sell psychoactive substances determined to pose low overall risk and exempted under Schedule 1 by regulations made under section 3.

(2) Before making any regulations under this section, the Secretary of State must consult—

(a) representatives of chief officers of police, local authorities and small businesses, and

(b) such other persons as the Secretary of State considers appropriate.

(3) Regulations under this section may—

(a) make different provision for different purposes, and

(b) contain incidental, supplemental, consequential or transitional provision or savings.

(4) The power to make regulations under this section is exercisable by statutory instrument.

(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(6) In this section “specified” means specified in regulations.”

Lord Paddick: My Lords, Amendment 51 stands in my name and the names of my noble friend Lady Hamwee and the noble Baroness, Lady Meacher. It would allow the Secretary of State to make regulations to license people and premises to sell low-risk psychoactive substances after consultation with representatives of the police, local authorities and small businesses.

The Government, in their background briefing to the Bill, acknowledge that some so-called head shops are well run and that the owners or managers of these premises make every effort to remain with the law and to conduct their business responsibly. We maintain that were all head shops to disappear, as happened when similar legislation was enacted in Ireland, users would resort to far more dangerous suppliers, such as street drug dealers and overseas websites. There is a real danger that the complete disappearance of head shops would result in more deaths from new psychoactive substances. Together with other amendments already debated, this amendment would allow low-risk psychoactive substances that have been exempted from the Bill to be sold to adults only, in closely regulated premises, by fit and proper licence holders.

We had a discussion this afternoon about how alcohol is very closely regulated. We are saying that, through this amendment, other low-risk psychoactive substances could be regulated and controlled. The overall effect of these changes would be to keep users from being driven into the hands of criminal suppliers and unregulated websites. I beg to move.

Lord Howarth of Newport: My Lords, I support this amendment. I think it is going to be very difficult in practice to implement the kind of regime that the noble Lord and his cosignatories call for, but I share

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his view that it may well be of much more questionable benefit than the Government suppose to close down the existing head shops en masse. I suspect that they vary very much in terms of the responsibility with which they deal with their clients but am pretty sure that, as the noble Lord, Lord Paddick, said, there are head-shop proprietors and staff who take a responsible view of the risks that their clients may run and the desirability of ensuring that they do not come to harm. It is very difficult to know how to prevent anyone coming to harm, not least because it is very difficult to identify the exact nature of the substances sold, even for the head-shop importers and proprietors, and there is not the evidence to tell us about the long-term effects of the use of new psychoactive substances.

However, I agree with the noble Lord, Lord Paddick, that there is a lesser danger in this than there is in consigning the users of new psychoactive substances to street dealers and to online sources based outside this country operated by people who have no scruples at all. The consultation process that the noble Lord has proposed would be problematic, because people in the neighbourhood of head shops tend not to like them and it would be very difficult to get local public assent to the licensing of head shops, but a responsible local authority ought to undertake that kind of exercise.

I was very interested to note that, in the briefing from the Local Government Association on this amendment that I think we have all received, it makes some very practical points:

“We would oppose councils being made responsible for licensing because of the difficulties in assessing if a product is of low overall risk. Unless there was a full scale testing and risk assessment regime in place covering health and other risks the safety of a product could not be guaranteed”.

It is absolutely right about that, which is one of the reasons why, on another amendment, I have argued for the provision of a network of testing facilities. We ought to aim at that. We should encourage responsible conduct by people who would seek to supply psychoactive substances to the market in this country. There is evidence that many people operating cannabis cafes in the Netherlands for example, particularly because they are under pretty close police and other supervision, take good care to ensure that the products that they offer are relatively safe and that they guide purchasers to buy the products that may be least dangerous and least unsuitable for them. One might even say, for those who favour the taking of cannabis, it is positively suitable for them—but I am neutral on that point. We have all the time to think practically and realistically and, in tabling this amendment, noble Lords are doing just that.

Lord Blencathra: I rise briefly in response to a point made by the noble Lord, Lord Paddick, when he mentioned that the closure of the head shops in Ireland had resulted in the whole trade going underground. I am not sure whether my noble friend has had a chance to see it or research it, but my Google alert this morning said that some new report had been published by some doctors or professors in Ireland—maybe it was Dublin university, or something—that suggested that, quite the contrary, use of psychoactive substances overall had declined dramatically with the head shops ban and it had not gone underground, as people had

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feared. I have not had a chance to Google it and study it all but, if my noble friend is not aware of it, perhaps he and his assistants in his office can swot up on it. I am sure that it is a measure that will be addressed again at Report. We had a big debate last week on the situation in Ireland, so it would be worth while studying this academic research to see whether it is kosher.

Lord Rosser: As the noble Lord, Lord Paddick, said, the amendment would introduce a system of licensing to sell psychoactive substances determined to pose low overall risk, which is contrary to the objectives of the Bill as it currently stands, which is to provide for a ban on new psychoactive substances. My noble friend Lord Howarth of Newport has already referred to the views of the Local Government Association and its lack of enthusiasm for this amendment, saying that it would oppose councils being made responsible for licensing because of the difficulties of assessing whether a product is a low overall risk. My noble friend Lord Howarth went on to refer to the further comments that the LGA made about the need for a very thorough regime to be in place if we were to go down the road that was being suggested in this amendment. The Government’s expert panel also said that it would be difficult to define low risk from a legislative and harms perspective and, even if it could be done, a mechanism for controlling new psychoactive substances would still be needed, which could lead to confusing messages about new psychoactive substances overall.

How does one decide whether a drug is safe? There are immediate risks that occur and also long-term risks that occur, including long-term psychological issues and dependency, so what does low harm mean in that context? The amendment refers to everything being set out in regulations, but I am not sure whether, under the terms of the amendment, a drug would be presumed safe until evidence came to the contrary or whether the producers of a drug would be expected to prove that the drug was safe. If so, how would you do that, how would you determine all the possible different types of harm, and would it have to involve human trials—because, without trials, how do you determine harm or otherwise?

The amendment refers in a sense to Clause 3, which provides that the,

“Secretary of State may by regulations amend Schedule 1 in order to … add or vary any description of substance”.

We had a discussion earlier today about the significance of the word “vary” but, in the light of the Minister’s response at Second Reading, I am still not clear why that provision in subsection (2)(a) is there, and why the Secretary of State may add a substance to the list. Listening to the Minister’s response at Second Reading, I got the impression that he was making it very clear on behalf of the Government that the Secretary of State would not be adding substances under the terms of Clause 3. Bearing in mind that the Government have put it here in the Bill, I would simply ask: in what circumstances do they envisage the Secretary of State adding to items in Schedule 1?

Lord Bates: I shall take that last point first. From time to time, new and very dangerous chemical compounds come into the market in the UK, as we know from the

30 Jun 2015 : Column 1998

whole experience of tackling new psychoactive substances. The provision is there to allow the possibility, in extreme circumstances, the likes of which we cannot envisage at this stage, on scientific advice and on advice from the police on a new substance coming into the UK and putting lives at risk, that we can act in a prompt way.

7.15 pm

The regulation-making power in the Bill is inserted for a number of reasons—to ensure that any unintended consequences can be remedied, for example, having excluded substances mistakenly or because substances have been undesirably caught, such as flowers. It is also for substances that have a legitimate purpose, such as for industrial uses or for healthcare, and it would enable a description of a substance to be updated to reflect underlying changes to the regulatory regime in respect of that substance—for example, to reflect future revocation or replacement of the Human Medicines Regulations 2012. I know that the noble Lord will probably not find that entirely satisfactory, but it is something that we feel is important to allow us—

Lord Rosser: The Minister will tell me if I am wrong, but I am very much getting the impression that the Government do not actually have any idea at the moment of the circumstance in which they might add an exempted substance to Schedule 1, but have put in the provision just in case something turns up that they cannot think of at the moment and that might lead them to want to do it.

Lord Bates: Well, I have given a couple of examples of things that may have been included by mistake. We know from the European monitoring centre that there are hundreds of new substances and chemical compounds that have been identified in the course of each year. Over 500 substances have already been banned in the past five years alone. Therefore, because of that fast-moving change, we have an enabling power in the Bill to allow us to respond quickly and effectively should a threat or an oversight with an unintended consequence come to light. I would have thought that, in good legislative practice, the fact that the Government would seek to respond in that way would carry a great deal of support.

I am conscious of time, but also of the fact that we dealt with a number of these issues under Amendment 19, when we discussed risk. We had a very good and thoughtful debate on that issue, and it was clear from that why, when the expert panel looked at the New Zealand licensing example, it felt that there were weaknesses in it because of how low risk or low harm would be defined. Therefore, the panel chose not to recommend going down that line but instead chose to follow the example of the Republic of Ireland and a blanket ban.

I come to the point raised by my noble friend Lord Blencathra, who asked whether I had seen the new report produced by Trinity College Dublin, an eminent academic source, on the ban on head shops and how it was actually impacting. One of the authors of the study, Dr Bobby Smyth, claims that,

“the results of the survey show that the kind of drugs being sold in headshops are not being used to the same extent any more”.

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That would seem to challenge one of the arguments that has frequently been put forward—that somehow the incidence of usage has increased. That is not what has been found. Dr Smyth also claims that those drugs have not been driven underground, as has been feared, stating that,

“the findings have shown that the implementation of legislation, targeted primarily at the vendors of NPS, did indeed coincide with a fall in NPS use among this high risk group of teenagers who attend a drug and alcohol treatment service … The study found that, among the two groups surveyed, not only did the problematic abuse of headshop drugs fall but that the use of cocaine and amphetamines also fell”.

Consumption of so-called legal highs fell sharply after the Government cracked down on head shops that sold them, according to new research. Researchers studied two groups of young people attending a drug and alcohol treatment centre in Dublin. The first group attended the service immediately before the legal changes designed to drive head shops out of business were introduced, and the second attended a year later, after the ban came into effect. The percentage of problematic users of head shop drugs fell from 34% in the first group to zero in the second. The percentage who had taken any such drugs in the previous three months fell dramatically from 82% pre-ban to 28% after the ban was introduced. The study was published in the International Journal of Drug Policy. That clearly produces some evidence, which I know was sought by Members of the Committee earlier when they asked whether the ban was having any effect.

Was the expert panel’s recommendation to take a different approach from New Zealand a sensible way forward? I think it probably is. Just last week, the state of Western Australia passed a blanket ban as well. There is a gathering view that this is having some effect in tackling a very difficult problem, and that licensing, however well-meaning and thoughtfully presented the arguments for it may be, is not as effective in achieving the outcomes that we all want.

Lord Howarth of Newport: Whatever policies are introduced on head shops—whether a wholesale ban, a crackdown, some degree of tolerance, supervision or licensing—we will not end up with the state of affairs that might well be desired by all of us: that there should be no more importation and consumption of new psychoactive substances. The Minister spoke earlier about the difficulties of defining “low harm”. I agree with him that these definitions are very hard to pin down. However, I also put it to him that in this field we are looking for the least bad solution. There is no ideal solution. We are looking for a practical set of measures that will, as far as possible, protect young people and society from the perils of dangerous psychoactive substances. There is a strong case for doing more work to achieve a workable, practical definition of “a low degree of harm”, and the approach advocated by the noble Lord, Lord Paddick, in this amendment should not be discarded.

Lord Bates: I respect the noble Lord in taking that position but it is a different position from that which the Government have arrived at after taking advice on this. The Local Government Association, which has to wrestle with these problems, has seen numerous examples

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over recent months of local authorities using a range of powers to shut down head shops in, for example, Lincoln, Portsmouth, Newcastle, Kent and Medway as a result of anti-social behaviour in and around these premises. I am not aware of any local authority or police force that welcomes head shops in its community.

Before I have letters flooding my way from the Australian high commissioner, I should point out that the government of Western Australia introduced legislation last month but it has not yet been passed. I hope that clarifies the position, and I hope that the noble Lord is reassured and feels able to withdraw his amendment.

Lord Paddick: I thank the Minister and other noble Lords for their contributions. The noble Lord, Lord Howarth of Newport, talked about having received the LGA briefing on this amendment. Regrettably, we have not received it, which puts us in a slightly difficult position in commenting on it. However, from what I have heard in the Chamber this afternoon, there seems to be some confusion over what the amendment is proposing. It proposes that local authorities license people and premises but the decision on which substances can be sold—that is, whether something is a low-risk substance—would be agreed by the Secretary of State, who would then put that substance on the exempt list. We have debated what “low-risk substance” means or could mean on a previous amendment. Our Amendment 22 offered a definition of “low overall risk” taken precisely from the Misuse of Drugs Act. What a low-risk substance is and how you define it is a separate debate.

I am grateful to the noble Lord, Lord Blencathra, for raising this new research. Again, it is difficult to comment without having read it, unlike the Minister. However, it sounds as though the surveys were conducted in a treatment centre for young people. The difficulty, as I have mentioned, is that when substances are made illegal people are very reluctant to come forward to seek treatment because those substances are now illegal, whereas previously they were legal and people had no qualms about coming forward.

Last week we offered the House the chance to have an independent, objective review, not only of the operation of the Misuse of Drugs Act but of what is happening in Ireland. It is very difficult for us in Committee to decide which side of the argument we come down on when there appears to be completely conflicting evidence of what the effects of the Irish ban are.

As to one thing I am more certain about, the Minister talked about the rejection of the New Zealand model. I understand that the problem with that model is that the suppliers of new psychoactive substances have not been prepared to put up the money to have their substances tested to the extent that they need to be to be approved. That is why the New Zealand model has run into the ground.

Lord Howarth of Newport: There have also been difficulties because of objections to testing on animals.

Lord Paddick: I accept that testing anything on animals is another very contentious issue. However, it is not right to say that the New Zealand model, whereby the door

30 Jun 2015 : Column 2001

has been left open to allow people to have substances tested to see whether they are low risk, has been rejected, other than on commercial grounds by the people who are producing them.

Having said all that, I am very grateful to the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

House resumed. Committee to begin again not before 8.30 pm.

Mental Health: Young People

Question for Short Debate

7.30 pm

Asked by Baroness Tyler of Enfield

To ask Her Majesty’s Government what plans they have to respond to the recommendations of the Children and Young People’s Mental Health Task Force Report Future in Mind.

Baroness Tyler of Enfield (LD): My Lords, following hot on the heels of our excellent debate last week on young people’s experience of mental health crisis care, I am delighted that today we are able to debate the Government’s response to the children and young people’s mental health task force’s report Future in Mind. Perhaps the focus we now have in your Lordships’ House on mental health—and, recently, on children and young people’s mental health in particular—shows that the tag “The Cinderella of Cinderella services”, which is often used in debates in this House, is starting to become a thing of the past. Let us hope that is indeed the case, but let us also remain vigilant so we can feel confident that the good intentions of the task force’s report will turn into a reality for the alarmingly high number of children and young people in this country experiencing mental health problems.

I start by thanking all the members of the children and young people’s mental health task force for producing an excellent report. Since its publication in March this year, it has clearly had a major impact on mental health policy. In his March Budget, the Chancellor announced that mental health services for children and young people would receive an additional £1.25 billion in funding over the next five years. This amounts to £250 million annually, £l5 million of which is for perinatal services, the rest being for children and young people’s mental health services. This is in addition to the announcement in the Autumn Statement of £150 million over five years for eating disorder and self-harm services. This new investment is much to be welcomed, and I do so wholeheartedly.

However we need to remember the broader context. It is no secret that historically CAMHS have been neglected and starved of cash, perennially losing out to other health services deemed to be of higher priority. So we should keep in mind that, even with the additional money, funding for CAMHS makes up only 8% of the total mental health budget, even though children and young people make up 23% of the population. Given this, it is more important than ever that we examine how these funds will be used.

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The additional £1.25 billion of funding will be directed to local areas once they have completed and published local transformation plans. In order to develop these plans, the lead commissioning agency, which is most likely to be the clinical commissioning group, needs to work with health and well-being boards, schools, children, young people and families in the locality to decide precisely where the investment should be targeted. To have real teeth, it is vital that transformation plans contain local access and waiting time targets in line with the ambitions contained in the NHS five-year plan, and address the issue of choice of provider for children and young people, including in the rollout of access to psychological therapy.

Considering that most families do not currently feel that CAMHS is anything like meeting their needs, it will be particularly important that CCGs communicate directly with children and their families to help determine the areas where additional investment is most needed. Yet the proposed timeline for formulating these transformation plans, which are to be completed by the end of September, is very short and, given the time of year that they are expected to formulate these plans—between July and September—one has to ask whether is it realistic to expect CCGs to be able to engage with schools, young people and their families in a meaningful way.

I was pleased to see a specific commitment of £15 million per year to improve perinatal mental health services. The task force reports that maternal perinatal mental health problems carry a long-term cost to society of about £10,000 per birth, and nearly three-quarters of this cost has to do with adverse impacts on the child. For example, the odds of a child developing depression are nearly five times greater if their mother experienced perinatal depression. Such outcomes are avoidable. Specialist mother and baby units across the country are delivering excellent results helping new mothers with psychiatric problems bond with their babies. The NSPCC suggests that one in 10 children would benefit if all new mothers with mental illness had access to programmes such as these mother and baby units. Given this, it is simply unacceptable that currently only 15% of localities provide perinatal mental health services at the level recommended in national guidance and that 40% provide no service at all. Worse still, only 3% of CCGs have a strategy for commissioning perinatal mental health services.

Turning to preventive work, I am also pleased to see that the Government have responded to calls from the task force for schools to take a greater role in promoting good mental health and fostering resilience—something we on these Benches have long called for. Some local areas are already doing very good work in this field. For example, Kingston Council decided to appoint health link workers, part of whose role is to help schools and young people identify mental health issues at an early stage. Working in this way, they are able to address issues such as depression, self-harm and eating disorders early on, so that they do not become a bigger problem later. The health link workers are also able to educate staff to recognise the signs, talk directly to the pupils and try to get them help.

I understand that the Department for Education will contribute £1.5 million in 2015-16 to run a joint pilot programme with NHS England to place named

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CAMHS contacts in schools to act as liaison between staff, students, and community CAMHS. If implemented effectively, this programme has the potential to provide more direct entry points into specialist mental health services and to allow school staff to gain insight into how to cultivate a healthy learning environment.

Schools can provide a very valuable referral route towards specialist services but, as the task force report highlights, this will not reach all the children who need mental health care, particularly the most vulnerable children. The charity YoungMinds reports that one in three young people say that they do not know where to turn to seek help. Indeed, the process of accessing specialist services can be lengthy and confusing. Programmes such as the Well Centre in London offer an alternative. It holds open drop-in hours for young people aged 13 to 20 three afternoons a week, when they can access specialist mental health support easily and confidentially.

For others, accessing care is difficult because of disability or other difficulties in their lives. For example, learning disabled children are likely to have particular difficulty accessing care. Barnardo’s reports that children in care are five times more likely to develop childhood mental health problems, and 10 times more likely than their peers to have significant learning disabilities, meaning that although they need support the most, they are also less likely to be able to access it. I particularly commend the work of the task force’s sub-group, which looked in depth at the issue of vulnerable groups and inequalities. As a result of its work, the task force report makes it clear that in order to engage the most vulnerable children, commissioners and providers across education, health, social services and youth offending teams will need to take an active role in engaging the children and young people who are the least likely to engage with existing services.

The task force found good examples of workers trained to deliver support in a flexible, approachable and joined-up way to help reach some of the most needy young people. What really brought this to life for me was the case study of Jay, a 17 year-old cannabis dealer involved in gang activity, who was mistrustful of professionals, fearing that talking to him would lead to him being put in prison. His mental health had deteriorated since witnessing several stabbings in his area. He failed to show up for various appointments, so his case was closed. But Jay’s youth offending team worker identified a youth worker in the community who already knew Jay and his family, and they began to meet Jay in places where he felt comfortable, such as at his favourite fish and chip shop. Eventually, the YOT worker was able to gain Jay’s trust sufficiently to convince him to begin treatment for substance abuse. Where most services would have given up on Jay, these workers were able to reach him and put him on a path to recovery from both substance abuse and mental ill health. How do the Government intend to respond to the task force’s recommendations about reaching out to the most vulnerable children and young people?

In my view, the task force report Future in Mind is a landmark document in the much-needed improvement of mental health services in England. My hope is that it fuels transformational change not just for CAMHS but for all the sectors involved in helping young people

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access appropriate and effective mental health care. The Government’s commitment of additional funding is very welcome and the development of transformation plans in this area is promising, but there is still much to do to ensure that the additional funding is spent to best effect. Will the Department of Health and NHS England therefore commit to publishing an annual progress report on the implementation of

Future in Mind


7.40 pm

Lord Patten (Con): My Lords, parity of esteem between physical and mental illness within the NHS is easier to parrot than to achieve, yet its achievement is morally, personally and practically vital, with an urgency no clearer seen than within young people with mental health problems, as the noble Baroness, Lady Tyler of Enfield, pointed out. It is morally vital because it is always a wrong to sideline or neglect one health problem versus another; personally vital because a young person helped through will be a happier young person, just like someone cured of a physical disease or a crippling condition; and practically vital because better care for the mentally ill young should diminish the need later for physical healthcare because of harmful drinking, drugs, obesity, self-harming, risky personal behaviour and all the rest. Therefore it makes pretty good pragmatic common sense, and if handled in this way will enable young people to improve their contribution to the way we live now. Of course, at its most utilitarian—I am sometimes utilitarian—it will also save money in the medium and longer term, which makes much economic sense for the nation.

Those, therefore, are the three reasons why I am an enthusiast for the direction of travel outlined by this Children and Young People’s Mental Health Task Force report, which has not received the public attention that it might have done had it not been published during the long-run pandemonium of the never-ending general election campaign. However, happily, from my point of view at least, we have a Government with a clear-cut mandate to deal with the long-running problems of young people with mental health. “No health problem sidelined” should be in NHS terms as resonant a phrase as is “No child left behind” in US educational circles. No sidelining—no one left behind.

Since 1945, mental health generally and young people’s mental health in particular has never been in the clearest focus. That is a failure on the part of all of us, at both ends of the Palace of Westminster, over decades. Thus, only perhaps a third at best of young people with a diagnosed mental health problem get full-on treatment, which is too low. Imagine if that was the case for young people diagnosed with cancer, and think of the outcry there would be because help was not available. It is good that so much of the treatment that occurs is of course now outside of longer-stay institutional settings, which I am thoroughly in favour of. However, it is also interesting to reflect that that began only just over half a century ago, back in 1961, when the then Health Minister, Enoch Powell, focused on the asylums of the day, brooded over by those towering chimneys and huge water towers, and started to shut them. However, it took pretty well 20 years after the National Health Service had been founded in 1945 for that process to begin.

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We are still in a period of sidelining and stigma for some of the mentally ill young. I find that all the more disturbing, as some 50% of lifetime mental illness starts before the age of 14, and 75% of mental illness overall sets in by the age of 18. Therefore it is no slick judgment on my part to say that our mental health problems as compared to our physical health problems are “young people’s problems” in essence, from when they first set in, unlike most physical problems—although that is sometimes the case for the young, too. If untreated, they roll on into the mental health problems of adulthood, becoming the biggest single cause of disability and, I am also told, the leading single cause of sickness absence in the United Kingdom. Therefore it is a major economic problem. Failure to treat leads to the further compounding of later misery, illness and economic cost. There are lots of moving parts, which are very hard to simplify.

All that must be set against the neo-exponential explosion of additional pressures on young women and men that have grown over the last two or three decades due to the parallel explosion of social media writ large, from innocent selfie to internet troll and back again, leading all too often to mental pressures and, at worst, teenage suicides, that we see among those who started off as mentally ill.

The compounding effects of social media and internet pressures have not yet been fully recognised by wider policy thinkers as they should have been, or by some policymakers. When more results come, they may well point to a growth rather than a diminution of young people’s untreated mental health problems. Perhaps the Minister—if not now, because I have not given him notice, then later by letter—can let us know the Government’s judgment on the effects on mental health caused by the growth of social media, and the relevant studies that should be being done if they are not. It is easy to say, “More research should be done”—it keeps researchers very happy—but we need to know the facts.

These issues have to be dealt with—the noble Baroness, Lady Tyler, has been very generous in her praise for what is happening about funding—within a ring-fenced if huge NHS budget. I do not intend tonight to press for yet more; we must live within our taxpayers’ means—I hope the Minister is pleased with that—and pay our debts. However, I hope that the Minister can give a clearer indication of the next steps that the Government propose within the tight constraints on public expenditure, which I support in full.

7.47 pm

The Earl of Listowel (CB): My Lords, it is a pleasure to follow the well-considered words of the noble Lord, Lord Patten, who of course quite rightly emphasises that there is a moral and an economic case here. The moral case is that unhappy children grow up into very unhappy, miserable adults, and the economic case is that unhappy children grow up into very unhealthy, unhappy and often troubling adults. Of course, the prison system is full of such adults, and that costs the state many tens of thousands of pounds each year per person. I am also very grateful to the noble Baroness, Lady Tyler, for again bringing us back to the issue of mental health, in particular the mental health of children

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and adolescents. She is indefatigable and I am so grateful to her for her work. I welcome the Minister to his portfolio. I know that it is some time since he took it, but I welcome him, and I look forward to having these discussions with him in future—I hope I can say that.

This is a very timely debate, an observation which I make particularly from my position as vice-chair of the All-Party Parliamentary Group for Looked After Children and Care Leavers. Two important reports have come out this month on looked-after children’s mental health. The first report, A New Vision, came out on 10 June. Enver Solomon, the director of the National Children’s Bureau and co-director of the Alliance for Children in Care and Care Leavers, said:

“The care system is not just about removing children from harmful situations and putting a roof over their heads. Many children in care have been seriously abused or neglected, and rely on local authorities as corporate parents to help them get back on their feet. Ultimately, the care system should help children overcome their past experience and forge the lasting and positive relationships that we know are vital to their future wellbeing”.

The NSPCC also briefed me this afternoon on a report coming out this Monday on achieving the emotional well-being of young people in care. This is the result of work it has done consulting people involved in the NSPCC childline and looking at case studies and at the costs of failing to meet the mental health needs of 13 to 16 year-olds. Therefore, this is a timely debate.

I have three requests to put to the Minister. First, I hope that he might consider arranging a meeting with the leads at the Department of Health and the Department for Education on looked-after children, including himself, if he has the time, together with me and the noble Baroness, Lady Tyler, given her role as chair of CAFCASS, so that we can discuss what practical steps might be taken to improve the mental health of looked-after children.

Secondly, will he look at conducting another survey of the mental health of looked-after children similar to that carried out in 2004? It was a thorough and deep survey published mainly by the Office for National Statistics, and it was very helpful in judging the scale of the mental health needs of looked-after children.

Thirdly, can the Minister say—perhaps he would like to write to me—how our specialist looked-after children’s mental health service provision is performing? There has been a lot of concern that these specialist groups may be suffering under the austerity measures. They are quite expensive to run but they are invaluable. The support that they provide, in particular to children’s homes, can make a big difference. I would be grateful if the noble Lord could write to me on how these groups are doing.

I am very grateful to the authors of this extremely helpful report. As has been said, this Government and, previously, the coalition Government have shown great leadership in looking at mental health and, more specifically and more recently, at child and adolescent mental health. Today, I attended a conference on early intervention and I thought about the importance of the leadership of the right honourable Iain Duncan Smith and Graham Allen MP, as well as others such as Andrea Leadsom MP. Their consistent championing

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of early intervention over a number of years has raised the matter much higher up the political agenda and has brought in more funding for it. I hope that we will see the same thing in this area through the championing of mental health by various Members of Parliament.

I turn to the report and shall focus on Chapter 6 on care for the most vulnerable. I begin by challenging one particular notion. I am concerned that we sometimes overvalue an evidence-based approach. It is important, but it is also important to value professional judgment—not in some way to fetter our humanity because we are busy waiting for the next piece of evidence-based research to be produced. Perhaps I may pray in aid the experience of Louise Casey. Many years ago when she was the tsar for homelessness, she complained, “I shall be really annoyed if I am presented with one more bit of evidence-based research from civil servants”. Looking at her working in practice, she has vision, experience and understanding, as well as a drive to take things forward. Balancing that sort of approach with an evidence-based approach is most important.

Those on the continent are not very interested in evidence-based approaches or in gathering data. In terms of looked-after children, they have very developed social pedagogues and highly trained and highly qualified reflective practitioners. Fundamental to their training is the ability to make and keep relationships with vulnerable children. Therefore, they learn skills such as cookery, art and music to engage these young people. Theoretically, as we all understand, the key to good mental health and recovery from trauma is the ability to keep and maintain an enduring relationship—to learn to endure in intimacy. Research on the continent into the educational outcomes for looked-after children is very positive, and it appears that the children perform better. Therefore, there is more than one way to approach these things.

I see that my time is about to run out but I want to pray in aid briefly the consultation and liaison mental health model, which is referred to in the report. It is important to provide staff in children’s homes and foster carers with good clinical support. They are the ones who see the children day to day and build relationships with them, so they should be supported on a regular basis by excellent mental health professionals, as the report suggests.

When consulted, children in care say, “I want one person to follow me all the way through care. I don’t want multiple placements. I don’t want multiple social workers. I don’t want multiple schools. I want continuity of relationships”. If this recommendation is adopted, we will see many more healthy young people leaving care. I look forward to the Minister’s response.

7.55 pm

The Lord Bishop of St Albans: My Lords, I, too, am grateful to the noble Baroness, Lady Tyler, for introducing this debate, for the excellent work of the task group and for the commitment that Her Majesty’s Government have already made to this area.

I also pay tribute to the many excellent charities that are working in this area. Just round the corner from where I live in St Albans is a small charity. I do not suppose that any of your Lordships will have heard

30 Jun 2015 : Column 2008

of it. It is called Youth Talk and it was set up some years ago, in 1997, by a local GP after she realised that there was a need for a safe place where young people could come for counselling and support. In the intervening years, more than 2,000 young people have used the service. Every year around 190 young people are seen and up to 50 sessions are offered each week. The service is free at the point of access to all 14 to 25 year-olds. It is one of the many unsung charities in our nation that are offering support in this extremely important area. Alongside the crucial statutory work, we need to think about encouraging the voluntary sector.

However, there is still a great deal to be done. As the former Minister Norman Lamb admitted about a year ago, for children and mental health services the prevalence data were out of date and the commissioning services were fragmented. It is good that some of these deficiencies are now being addressed. Therefore, I am supportive of the proposal in the Future in Mind report that good research in the form of a prevalence survey should be conducted by the Department of Health every five years. That would give us a wide range of data, including factors such as ethnicity and socioeconomic background, with a special emphasis on vulnerable groups.

I want to comment on two other areas. First, I strongly support the recommendation that,

“designated professionals”,


“liaise with agencies and ensure that services are targeted and delivered in an integrated way for children and young people from vulnerable backgrounds”.

We are all aware of the problem of statutory and voluntary agencies working in silos, resulting in young people falling through the net. The troubled families programme has shown us the value of having a champion —a co-ordinator whose role is to focus on getting change and who can draw together all the different parties to ensure that the help can be delivered effectively and consistently. Without such “designated professionals” who are given the appropriate power and resources, it is unlikely that we are going to solve the problems that have dogged this area for such a long time.

I also want to commend to your Lordships’ House a campaign launched last Friday by the Children’s Society called Seriously Awkward. The campaign is based on empirical research of more than 1,000 teenagers of 16 and 17 years of age, and it relates directly to many of the points made in the Future in Mind report. However, it argues cogently that there are a number of areas that need urgent attention. In particular, the campaign points out that the legislation relating to 16 and 17 year-olds is highly inconsistent and is causing problems regarding where they fit and who is responsible for them. We need some clarity in this area. The campaign argues that the Government should establish a right for 16 and 17 year-olds to be entitled to support from CAMHS when they need it. This support must be available as early as possible, and long before mental health needs become acute. It argues that the Department of Health should, as it is in the process of recommissioning a new prevalence study, include 16 and 17 year-olds in that study, and there seems to be some lack of clarity about that.

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Tailored information should be produced by CAMHS providers about mental health symptoms and conditions for adolescents to support them in understanding their experiences. Information also needs to be available to their families, to help them both in parenting adolescents appropriately and meeting their emotional needs. In addition, services working with vulnerable adolescents should consider their mental health needs within the family context and offer appropriate support to the young person and their family, working together.

Local authorities and health and well-being boards should evaluate the levels of mental health support available to vulnerable groups of young people. The commissioning of effective mental health services needs to be underpinned by robust and reliable data on the use of mental health services, particularly by vulnerable groups.

Finally, at present, support for victims of child sexual abuse is often dependent upon children displaying symptoms of diagnosable conditions. Child victims should, as a matter of course, receive support to help them overcome the trauma of abuse. Therefore, what are the Government doing to ensure that older adolescents have access to mental health support? Will the Government ensure that 16 and 17 year-olds are included in the upcoming mental health prevalence study of children and young people’s mental health? Will the Government ensure that some of the additional funding is ring-fenced to ensure that victims of child sex abuse have access to mental health support?

8.01 pm

Baroness Walmsley (LD): My Lords, I congratulate my noble friend Lady Tyler of Enfield on introducing this important debate. We have heard some very thoughtful speeches, ranging widely across the subject. My noble friend called for wise spending of very scarce resources and emphasised the need to consult children themselves and their families when putting together the transformation plans that are so important. She called for better access to services for young people, particularly the most vulnerable groups, and for some monitoring as to how well we are doing through an annual report.

The noble Lord, Lord Patten, emphasised the importance of parity of esteem for physical and mental health and called for early intervention. He was particularly concerned about the effects of social media on young people—something that of course did not affect your Lordships when we were growing up.

The noble Earl, Lord Listowel, in his usual way championed, as he has done so wonderfully over the years, looked-after children. He called for services to take account of their particular vulnerability to mental health problems and their need for emotional well-being, which they may well not have grown up with given their difficult backgrounds.

The right reverend Prelate the Bishop of St Albans talked about the good work of charities. He called for more data about prevalence and emphasised the difficult position of 16 and 17 year-olds being very inconsistent in legislation.

For my own part, like the noble Lord, Lord Patten, I am particularly interested in the prevention of mental health problems. Like him, I believe that that is the

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cost-effective approach. There is so much evidence that perinatal mental health, proper parental attachment and early intervention are not only more effective for the human beings involved but more cost effective for the taxpayer. So I welcome those elements of the report that focus on early intervention.

My noble friend emphasised perinatal mental health services, and I would like to start by asking the Minister what progress has been made on the recommendation that there should be a specialised mental health clinician available to all perinatal units by 2017? How much emphasis is given in antenatal classes, for example, to making mothers aware that they need to focus on their own well-being, minimise stress and ensure that they bond well with their baby when it arrives? One cannot start too early when fostering good mental as well as physical health.

There are some excellent charities working in this field, such as OXPIP, which focus on good attachment. They have learned many lessons about what works well in relation to identifying poor attachment and addressing the situation. What is being done to ensure that these lessons are being used all over the country?

The report focused on the need for early support initiatives, and it is clear that health visitors are key to this ambition. However, some health visitors have been in the profession for many years. Although their long experience is enormously valuable, since it allows them to develop deep knowledge and good judgment, it may also mean that they have not had time in their busy schedule to keep up with the latest on early intervention. Can the Minister assure us that they will be allowed enough time for this sort of continuous professional development?

Learning the lessons of what works is a key element of the new HeadStart initiative funded by the Big Lottery Fund and this is to be very welcomed. The project is focused on a key group, those aged between 10 and 14, to better equip them to deal with difficult life experiences and develop their resilience as protection against future events that might damage their mental health. Since half of all adult mental health patients first had problems before they were 14, this is exactly the right target group. Although £75 million sounds like a lot of money, there is a big task ahead. I understand that 12 pilot projects are under way, providing early support to children who need it, both in and out of school. Lessons learned will be shared with schools, youth groups and decision-makers. Partners include, as they should, GPs, local authorities, schools, youth groups et cetera. Some of these are used to working in partnerships, but others are not—I hope that the worst come up to the standard of the best.

Schools, of course, play an enormous role. With others in your Lordships’ House, I have long called for compulsory PSHE in schools, starting early in an age-appropriate way. Some people think that we are just talking about sexual health and relationships, but we are not. We are talking about developing self-esteem, self-confidence and resilience, as well as the life skills and knowledge to help the child cope with the modern world when he or she leaves school. Will the Minister go back to his colleague the Secretary of State for Education—who I think has more of an open mind

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about the matter than her predecessor—and encourage her to change the Government’s mind about this, because it is a vital weapon in our armoury against the epidemic of mental health issues among young people?

The task force also recommended that there should be a CAMHS contact in all schools. Earlier this year, the Department for Education proposed to implement pilot schemes in 15 areas. Can the Minister say whether this has begun and how the schemes’ success will be assessed, since we have heard nothing about it since March?

Many schools, of course, are not waiting for government to catch up. They have counsellors, anti-bullying programmes and partnerships with excellent organisations, such as Place2Be, which does wonderful work in schools at a very moderate cost. However, it is not easy for hard-pressed head teachers to find a room for them to work in and the small amount of money to fund their programmes.

The noble Earl, Lord Listowel, talked about the importance of training those professionals who work with looked-after children. But I have become very concerned just recently to realise how few doctors are trained in psychiatry in their initial training. Given that one quarter to 50% of patients presenting to GPs have mental health problems at the root of their illness, it really is important that we have some consistency across the training of doctors in this country, and in particular those Jacks of all medical trades, the very important GPs working in primary care.

I await the Minister’s response with interest, particularly on those questions about prevention.

8.09 pm

Lord Bradley (Lab): My Lords, declaring my health interest, I also congratulate the noble Baroness, Lady Tyler of Enfield, on obtaining this short debate and her excellent contribution to it, and thank noble Lords for all the excellent contributions to this debate this evening.

Child mental health is rightly now very high on the health agenda and there is a huge interest in mental health among the public, for both children and adults, as an ambition for parity of esteem between physical and mental health is progressed.

I shall give just a few facts and figures. According to the 2004 data—the most recent available—one child in 10 has a mental health problem. About half of those children, 5% of all children, meet the criteria for a diagnosis of conduct disorder: severe and persistent behavioural problems. A further 15% of children have a mild or moderate behavioural problem that has an impact on their future health and life chances.

Mental health problems during childhood tend to continue into adult life, especially if untreated. Children with behavioural problems also experience poor outcomes in school and in employment and have a high risk of getting involved in crime as young adults.

However, it is estimated that only 25% of children with a mental health problem get treatment of any kind. As we have heard, the previous Government’s response was the creation of the mental health task force, which reported in March 2015. Its excellent report, Future in

  30 Jun 2015 : Column 2012 


, was a template for change in services for children and young people. It made 49 recommendations for better support for children’s mental health. They included far-reaching changes to CAMHS provision, greater emphasis on the role of schools and earlier intervention when children become unwell. Crucially, it called for every local area to be required to produce a transformation plan for improved children’s mental health care.

It is very welcome that in the March Budget investment of £1.25 billion was announced, to be provided over five years. That is £250 million a year for CAMHS, perinatal mental health care and employment support for adults. It equates to only about £1 million per clinical commissioning group per year. I would be grateful if the Minister would comment on whether he is confident that this is a sufficient injection of funds for each CCG to meet Future in Mind’s 49 recommendations at a local level.

As we have heard, plans have also been announced for a new prevalence survey for children’s mental health, replacing the 2004 data which are still in use. Again, this is very welcome and will allow for much more effective and efficient planning of the range of services required for children and those in transition to adulthood.

Another welcome move is the banning of the use of police cells for children detained under Section 136 of the Mental Health Act. I am very pleased that the Minister assured the House that the use of police cells would be at zero by 23 June 2016, but will he also ensure that open adult psychiatric wards are not used as places of safety for children instead of police cells?

While the Future in Mind report is welcome, how will the Government ensure that it is implemented in full across the country? Will it be given a prominent place in the next NHS mandate, and how will local areas be held to account for producing and implementing robust transformational plans? Such plans will be crucial if we are going to make a step change for child and adolescent mental health services at a local level.

Most importantly, will the Government set out clear expectations of schools to promote mental health—for example, through social and emotional learning—and empower Ofsted to include it in its inspections? Should we perhaps follow the example of Wales and make access to counselling mandatory in secondary schools? My own report on mental health and the criminal justice system made clear the importance of mental health awareness training for all staff in schools, but, obviously, principally teachers—not to become experts in mental health but to be effective passporters of children to appropriate CAMHS or other services before their health problems may lead them into trouble.

I also commend the Big Lottery Fund’s HeadStart scheme that the noble Baroness, Lady Walmsley, rightly pointed to and its investment of £75 million in 12 trial sites. This is an important new intervention which will be monitored and, I hope, rolled out more broadly as a consequence.

Finally, perhaps I may ask the Minister about parenting programmes, as recommended by NICE. These have been found to be extremely effective in addressing conduct disorder, as I identified earlier. The cost of such programmes is estimated to be just £1,750 per

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child, against a lifetime cost of not taking action of £175,000 per child. Can the Minister therefore explain the logic behind the Government’s decision to cut the public health budget by £200 million, a budget which helps fund such programmes?

This debate on the task force’s key recommendations is important and timely. I know that all interested Members in this House will ensure that we monitor the implementation of its key recommendations to ensure that children and adolescents benefit in future from a much more effective mental health service.

8.16 pm

The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con): My Lords, I congratulate the noble Baroness, Lady Tyler, on securing this important debate. Mental health is a key plank of this Government’s health policy and will certainly be highlighted in the mandate given to NHS England. Whether or not there will be an annual report, I can assure the noble Baroness that there will be clear progress reports on implementation.

A number of noble Lords said in relation to parity of esteem that words are cheap. The noble Lord, Lord Patten, said that we have parroted those words for far too long without putting resources behind them. Even after this new investment, if one today compares the kind of treatment that young children receive if they have cancer with the kind of treatment they get for severe psychosis or eating disorders, even though it may no longer be a Cinderella service I am afraid that the tag “Cinderella” would still be there until we have proven otherwise.

I am happy to confirm this Government’s commitment to transforming children and young people’s mental health and well-being. The Future in Mind report, published on 17 March, sets out a clear consensus and vision for improving services. In the foreword to that report, the NHS England chief executive, Simon Stevens, said:

“However in taking action there are twin dangers to avoid. One will be to focus too narrowly on targeted clinical care, ignoring the wider influences and causes of rising demand, overmedicalising our children along the way. The opposite risk would be to defuse effort by aiming so broadly, lacking focus and ducking the hard task of setting clear priorities”.

There is a real danger that one could fall between those two stools if one were not careful.

I can confirm that there will be an additional £1.25 billion allocated for improving children’s and young people’s mental health over the lifetime of this Parliament. This is in addition to the £150 million announced in the autumn Budget. The noble Lord, Lord Patten, and others made the important point that we are talking with mental health not only about a human tragedy but about a huge economic waste as well. On both counts this should be a major priority for this Government.

The first step in delivering the vision set out in Future in Mind will be the development of local transformation plans which will be produced collaboratively by local areas. The right reverend Prelate the Bishop of St Albans and the noble Baroness, Lady Walmsley, both mentioned

30 Jun 2015 : Column 2014

the importance of local charities and voluntary groups in this area. We will not in any way ignore the vital role that they play. I am not familiar with the work of HeadStart, to which the noble Baroness and the noble Lord opposite referred, but I would like to find out about it after this debate. These plans will have an emphasis on local partnering and joint commissioning. I take on board the noble Lord’s comments about the number of different CCGs. When one spreads the money around CCGs it does not look all that much. I am not sure whether the noble Lord is suggesting that we should reduce the number of CCGs or increase the money.

NHS England and the De[apartment of Health are working with partners to jointly produce national guidance to support local areas to develop these plans. NHS England aims to publish its guidance in July.

I was struck by two comments in Future in Mind by two young people. One was:

“You have to fit into their paths and none of their paths fit you”.

The other was:

“Mental health isn’t a one size fits all treatment, it really depends on the person”.

The right reverend Prelate the Bishop of St Albans laid particular stress on the importance of co-ordinated care.

The Care Quality Commission report, From the Pond into the Sea, highlights the complexity and cliff edge that many children experience as they transition from children’s to adult services. We should be particularly focused on this area.

As well as the development of the local transformation plans, I am pleased to say that progress is also being made against many more of the Future in Mind proposals. We are expanding the highly regarded Children and Young People’s Improving Access to Psychological Therapies programme. This is due to increase access and coverage across England from 68% to 100% by 2018.

We are introducing waiting times. In particular, this will include a target of treatment within two weeks for more than 50% of people of all ages experiencing a first episode of psychosis. It was here that I thought that if you substituted “psychosis” for the word “cancer”, we would not be standing here feeling all that good about ourselves. It is not enough, but it is a start. It will go some way to help reduce the number of young people having to wait an unacceptable length of time to access services.

The noble Earl, Lord Listowel, and a number of noble Lords mentioned the prevalence study produced in 2004. We are doing a new prevalence study, as the noble Earl will know. One of the differences with the new study is that it will pick up the impact of social media on young people, which was not there in 2004—a point made by my noble friend Lord Patten. It will include 16 to 17 year-olds and older children as well.

We know that schools have a hugely important role to play in supporting and promoting good mental health. The noble Baroness, Lady Walmsley, raised the question of whether Ofsted in its inspections could look at the liaison with mental health services. The noble Baroness, Lady Tyler, pointed out the good work that is being done by Kingston Council. I will raise the issue of Ofsted with the Department for Education.

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The noble Lord opposite raised the issue of the use of prison cells and Section 136. We covered that in a previous debate, so I will leave it today if I can.

We are working with the Department for Culture, Media and Sport to explore how we can better support and protect young people online to prevent damaging experiences and better support distressed users. We are also looking at how we can better use the internet and digital devices to provide clear information and advice to young people in an accessible and familiar environment.

A number of noble Lords raised the issue of vulnerable groups. We must ensure that the benefits of this transformation are felt by all children and young people. I was interested in the particular example mentioned by the noble Baroness, Lady Tyler, of a young man called Jay and the beneficial impact that a youth worker can have on a young person with complex and difficult issues. That gelled with a comment made by another noble Lord who said that we must not always be looking for evidence—rather, we must allow professional judgment to have full sway. Vulnerable groups include people from black and minority ethnic backgrounds who, as outlined in the 2014 report of the Institute for Health and Human Development, face additional barriers to mental well-being.

Perhaps I may briefly address the other two points made by the noble Earl, Lord Listowel. Of course I will be very happy to meet the noble Earl outside the Chamber to talk about looked-after children, particularly in the light of the NSPCC report to which he referred in his remarks. I have not seen it yet—I think that it comes out in a few days’ time. I will write to him about the other issue that he raised.

I turn back to prevention. The social and economic case for prevention and well-being promotion is set out clearly in Future in Mind and will form an important part of the Government’s work. There is no doubt that early intervention is crucial. I was struck by the remark made by the noble Baroness, Lady Tyler, that it is five times more likely that a child will suffer from depression later on if their mother suffered from perinatal depression. That is a new statistic for me and more evidence that you cannot do enough for people when they are very young. I shall quote from Future in Mind:

“We can all look out for those children and young people who might be struggling right now. We can confront bullying and we can make it OK to admit that you are struggling with your mental health. We can end stigma. And we can support our friends in their treatment and recovery”.

My noble friend Lord Patten raised the issue of stigma. It is a lot better than it used to be, but, again, there is much more that we can do.

The Department of Health is currently working with other delivery partners to develop the collaborative partnering required to co-ordinate delivery of this important work. We will continue to drive forward transformation across children and young people’s mental health and well-being, delivering system-wide and sustainable transformation for all children and young people across England. I can assure all noble Lords that the issue of young people’s mental health is very important—it is hard to think of a more important issue facing the Department of Health, or indeed a

30 Jun 2015 : Column 2016

more difficult challenge because these are not easy issues. The right offer, available in the right place and at the right time, delivered by a workforce with the right skills and knowledge, are all essential if we are to deliver this important report into reality.

Again, I thank the noble Baroness, Lady Tyler, for securing this important debate. If I have not done justice to all the questions that have been raised, I am happy to meet noble Lords outside this Chamber or to write to them.

8.27 pm

Sitting suspended.

Psychoactive Substances Bill [HL]

Committee (2nd Day) (Continued)

8.30 pm

Clause 11: Meaning of “prohibited activity”

Amendment 52 not moved.

Amendment 53

Moved by Baroness Hamwee

53: Clause 11, page 6, line 10, leave out paragraph (f)

Baroness Hamwee (LD): My Lords, I shall also speak to Amendment 54. This takes us back to Clause 11, particularly subsection (1)(f), which makes,

“assisting or encouraging the carrying on of an activity listed in”,

the previous paragraphs a prohibited activity. Our first concern, which we dealt with in Amendment 54, was that this should not prevent information or education, in the very widest sense, about psychoactive substances. The approach of informing and supporting people who are taking or considering taking psychoactive substances might include support for reducing their consumption rather than cutting it out, or gentle direction towards the use of what might be thought less-harmful substances. I was reminded of what I might call the dark days of Section 28 regarding the promotion of homosexuality; there was a sort of resonance there that I wanted to pick up on. Amendment 54 would provide that advice and information was not to be a prohibited activity, even though I accept that some noble Lords might think of advice and information in a slightly different way from what we envisage.

Then I wondered why this was necessary at all. What happened to aiding and abetting, and what about Sections 44 and 45 of the Serious Crime Act 2007, which deal with intentionally,

“encouraging or assisting … an offence”?

Are they not adequate? Do we have to provide something specific? Section 44(2) says that the person,

“is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act”.

I am sorry, I have not introduced this very well, but my question is not only why Section 44 does not apply but whether there is a deliberate exclusion of Section 44(2)

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regarding the not foreseeing of the consequence of the act. I would be concerned if that was not to apply. I beg to move.

Lord Howarth of Newport (Lab): My Lords, I agree with the noble Baroness. I am glad that she has tabled these amendments and made the points that she has. It does not look as if there is anything to worry about but it certainly would be very helpful to have reassurance from the Minister and some clarification. It would also be very helpful if he felt it possible to add explicitly to the Bill the amendment in the name of the noble Baroness and the noble Lord, Lord Paddick; namely, that,

“the provision of advice or information … shall not be a prohibited activity”.

We have a number of charities and organisations active in the field which simply seek to reduce harm and to protect vulnerable people. They are not proselytising for the taking of drugs but are knowledgeable about it and doing what they do with good intentions. We certainly do not want the kind of information websites that we have debated as regards previous amendments to find themselves with questionable legal status. Clarification would be helpful and if the Minister feels able to put something in the Bill so much the better.

Lord Tunnicliffe (Lab): My Lords, I am sorry that the Chamber is not fuller to witness this unique moment when I agree with my noble friend Lord Howarth of Newport. I am not sure that it will happen again: it has certainly not happened before. We all take the view that well-informed education is key to drugs policy and to addressing these very difficult issues. The spirit of Amendment 54 seems quite interesting. We are very interested in how the Minister responds to it. It would be very bad if, by accident, we inhibited thoughtful education on this issue.

I cannot go all the way on Amendment 53. Certainly, I can see why we would like to make a crime of assisting. Encouraging, once again, gets into worrying territory. I will listen to the Government’s response with great care.

Baroness Chisholm of Owlpen (Con): My Lords, I think we all agree that the key element of this Bill is the provision of civil sanctions. These are important because they offer an alternative, flexible mechanism to tackle the trade in new psychoactive substances. The amendments in this group relate to the list of prohibited activities in Clause 11. These activities essentially cover the offences in Clauses 4, 5 and 8— namely, the production, supply, importation and exportation of a psychoactive substance—along with the secondary offences of assisting and encouraging those offences.

Amendment 53 seeks to remove paragraph (f) from Clause 11(1) and so remove from the list of “prohibited activity” activities which assist or encourage the production, supply, offering to supply, importation or exportation of a psychoactive substance. In the normal way, the secondary offences of assisting or encouraging a crime apply to each of the main offences in the Bill, which is why the Government have specifically included such conduct in the list of prohibited activity.

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If this amendment were to be made it would not, for example, be possible to serve a prohibition notice on someone providing precursor chemicals to another person knowing that the other person intended to use them to produce psychoactive substances. Were that the case, the relevant law enforcement agency might then have no option but to charge that person with the criminal offence of assisting the commission of an offence under Clause 4. Amendment 53 could therefore have the opposite effect to the outcome that the noble Lord is seeking to achieve, as it would force law enforcement agencies down the prosecution route rather than deploying a civil sanction.

The noble Baroness has asked how assisting or encouraging a crime differs from aiding or abetting a crime. This is a complex subject, which has excited much debate within the legal community ever since the Serious Crime Act 2007 created the offence of encouraging or assisting. Perhaps it is simplest to acknowledge that there is potential crossover between the two concepts—on occasion it will be possible both to aid and abet, and encourage or assist—but there will also be offences where, because of the circumstances, it will be possible to encourage or assist, even though there is no aiding or abetting.

Amendment 54 seeks to make clear in the Bill that the provision of harm reduction advice or information does not constitute a prohibited activity. Let me assure noble Lords that giving such harm reduction advice will not be a criminal offence under the Bill. The Government have no desire to hinder the giving of such advice—the opposite is in fact true—but if someone were to publish a manual on the production of psychoactive substances, we would wish to see that activity prohibited. The Bill allows for this. For instance, guidance published by a charity which identifies and highlights the dangers of these substances will be seeking to reduce the harms of these substances and will not fall foul of the Bill. I hope that having that assurance on the record will allay any concerns that the noble Lords and the noble Baroness may have in this regard.

The Government recognise that this legislation is not the silver bullet to tackle psychoactive substance misuse. The Bill must be seen in the context of our wider strategy to tackle the harms they cause. We are also driving forward another key recommendation of the expert panel, that of enhancing our efforts to reduce demand, including through effective prevention programmes and by providing the right health-related services to support individuals recovering from substance misuse. This is, of course incredibly important. On the basis of that explanation and the assurance that I have given on Amendment 54, I hope that the noble Baroness will be content to withdraw her amendment.

Baroness Hamwee: My Lords, I certainly will. I am grateful for that explanation. I can understand the structure of the clause and its thrust rather better than I did, which was pretty stupid of me. When I looked up “aid and abet” on the internet to see what that told me, I was pointed straight to the CPS guidance, which seemed to deal with pretty much everything other than aiding and abetting. It starts with “assisting and encouraging”, so it is hardly surprising that some of

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us are confused. I did not know that there was such a major debate going on in the legal community; they must speak of little else. I am grateful for the clear explanation; I beg leave to withdraw the amendment.

Amendment 53 withdrawn.

Amendment 54 not moved.

Clause 11 agreed.

Clause 12: Prohibition notices

Amendment 55

Moved by Baroness Hamwee

55: Clause 12, page 6, line 23, at end insert—

“( ) In the case of reasonable belief under subsection (3) that the person is likely to carry on the activity, the prohibition notice must set out the reasons for that belief.”

Baroness Hamwee: My Lords, in moving Amendment 55 I will speak to Amendments 58 and 60B in my name and that of my noble friend. The first amendment would add to one of the two conditions required for a prohibition notice not only that there must be a reasonable belief that a person is carrying on or likely to carry on a prohibited activity but that the notice must set out the reason for that belief. Clearly, that person should know the basis of it. I realise that this might be covered by Clause 14(2)(a), but I would be glad to have confirmation of that.

Amendment 58 is similar but in the context of a premises notice. Amendment 60B to Clause 14(2)(b)—where we are told that the notice,

“must … explain the possible consequences of not complying”,

with it—would add,

“based on the grounds in paragraph (a)”.

This is probing the extent of Clause 14(2)(b): what it is expected to cover, in what detail, and so on. I beg to move.

8.45 pm

The Minister of State, Home Office (Lord Bates) (Con): My Lords, as the noble Baroness explained, these amendments relate to the issuing of a prohibition notice and a premises notice under Clauses 12 and 13.

I begin by saying that the Government fully support the principle of these amendments, so much so that the Bill already contains similar provisions which seek the same thing. A prohibition notice can be issued under Clause 12 where a,

“senior officer or local authority reasonably believes that the person is carrying on, or is likely to carry on, a prohibited activity”,


“that it is necessary and proportionate to give the prohibition notice for the purpose of preventing the person from carrying on any prohibited activity”.

A premises notice in Clause 13 can be issued where a senior police officer or local authority reasonably believes that a prohibited activity, as defined in Clause 11,

“is being, or is likely to be, carried on at particular premises, and … the person owns, leases, occupies, controls or operates the premises”.

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Amendments 55 and 58 seek to amend Clauses 12 and 13 respectively to require the relevant senior police officer or local authority to set out the reasons in support of their reasonable belief that the respondent is carrying on, or is likely to carry on, a prohibited activity.