The Bill contains both criminal and civil sanctions, which will enable law enforcement agencies to adopt a proportionate response to offending behaviour. In addition, the police and the Crown Prosecution Service will exercise their professional discretion, taking into all the circumstances of the offence and the offender. The public interest test will apply to any prosecution, and there will be an option of pursuing an out-of-court disposal in appropriate cases. I take the point that the noble Lord, Lord Paddick, made, particularly in relation to BME communities, which I shall come to in a moment.

Ultimately, however, if the circumstances justify a prosecution, that option should remain open. Moreover, these amendments would make the task of the police and prosecutors in tackling commercial suppliers that much harder. The amendments, if made, would add another element to these offences which would need to be proven, with drug dealers attempting to evade justice by seeking to argue that they received no payment for the transaction in question.

I know that the advisory council was particularly concerned to ensure that the enforcement powers in the Bill did not result in a discriminatory impact on members of black and ethnic minority groups. The Government fully share these concerns. In Committee, we had a good debate on the stop-and-search powers in the Bill, and I subsequently wrote to the noble Lord, Lord Paddick, to explain the necessity for these and how they would avoid the need for the exercise of more intrusive powers of arrest. In addition, my right honourable friend the Home Secretary made it clear that we must reform the way stop-and-search powers are used and we are committed to legislate to mandate changes in police practices if the exercise of these powers does not become more targeted and stop to arrest ratios do not improve.

As was said during debate on the previous group of amendments, we greatly value the advice from the advisory council on the provisions of the Bill. This is the one recommendation that it made which we are unable wholly or partly to accept. To exclude social supply would create a significant loophole in the framework of the Bill, and I therefore ask the noble Lord to withdraw his amendment.

Lord Paddick: The noble Lord does not appear to have addressed the issue of disproportionate charging of black and minority ethnic suspects or the fact that, in terms of caution rather than no further action being taken, disproportionate action is being taken by the police and the Crown Prosecution Service. This is

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according to public data; it is not something that I am plucking out of thin air—it is an established fact. This Bill could make that situation worse. The noble Lord has not addressed specifically those issues.

My understanding of what he said was that it would be anomalous if someone who supplied cannabis to their friends would be prosecutable but that, if the amendments went through, the person would not be prosecuted in relation to supply of a psychoactive substance covered by the Bill. However, personal possession of cannabis is a criminal offence but simple possession of a psychoactive substance covered by the Bill is not a criminal offence. That is another anomaly and is not a persuasive argument against these amendments.

Lord Bates: The noble Lord made a good point on stop-and-search powers and I know that a significant body of work is going on in relation to it. I was going to quote some of the reports on it and the actions that the Home Secretary has requested and taken on recording the data on how stop-and-search powers are used, particularly vis-à-vis black and minority ethnic communities. Perhaps I can undertake to write to the noble Lord and set that out in some detail. Because it is such a serious point, the ACMD was right to raise it in its letter, and the Home Secretary was right to acknowledge that point in her response. However, that does not take away from the wider point that allowing a defence or allowing for a provision relating to social supply of new psychoactive substances would provide a loophole that would be open to exploitation. It is for that reason, rather than the other, that I ask the noble Lord, Lord Howarth, to withdraw the amendment.

Lord Howarth of Newport: My Lords, I am grateful to everyone who has spoken. We know and applaud the Home Secretary’s drive to reform stop and search, and her desire that its incidence should be greatly reduced, not least in light of the findings that a high proportion of stop-and-search operations have been conducted illegally. However, the noble Lord, Lord Paddick, with all his experience of policing in Brixton, has raised a fresh point in our debates that is exceedingly important. It is that stop and search is producing a disproportionate incidence of cautions and charges among BME communities. I hope that the Home Office will reflect carefully on what the noble Lord had to say.

The noble Baroness, Lady Meacher, put it to us that the charge that a young person might receive for supplying a psychoactive substance to their circle of friends, although not doing so for profit, might actually be more damaging than the effect of the psychoactive substance. That would often be the case. She mentioned Portugal, where the health-led approach is very different from the comprehensive prohibitionist approach that the Government have espoused and are reinforcing in this legislation. It is interesting that the European monitoring centre’s statistics show us that Ireland, which has used the approach that the Government are now seeking to legislate to provide in this country, has the highest incidence of consumption of new psychoactive substances among the many European countries covered by this survey; and Portugal has the lowest. There are lessons to be learnt from that.

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The noble Lord, Lord Ramsbotham, reminded us of the dangers of a criminal charge getting on to a young person’s record and being carried through into adulthood—and what a millstone that is around their neck. I should imagine that that is dangerous psychologically and in all sorts of practical ways.

I take seriously the intervention by the noble and learned Lord, Lord Hardie, who asked us to consider the extreme circumstances in which someone, perhaps with innocent intentions, had provided a substance to a circle of friends but it had all gone horribly wrong and someone had died. The noble and learned Lord said that the right solution was to leave the question of prosecution to the judgment of the prosecutor. I was pleased that the Minister indicated that that, too, would be his view—that discretion, which can be used by the police and the prosecuting authorities, is provided in the Bill. The intervention underlined how important the exercise of that discretion is.

I understand why the Home Secretary would not want to create a large loophole in the coverage of the legislation, and I was pleased that the Minister told us that the Government were seeking as far as they could to minimise the criminalisation of young people through this legislation and that he shares the concerns expressed by the noble Lord, Lord Paddick. I am sure that the House of Commons will want to think further about this issue. In the mean time, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendment 14 not moved.

Amendment 15

Moved by Baroness Hamwee

15: Clause 5, page 3, line 7, leave out “is reckless as to” and insert “should know”

Baroness Hamwee: My Lords, the amendment is in the name of the noble Lord, Lord Lucas, who cannot be here today. One should perhaps keep one’s mouth shut, because when I said to him, “I think you have a point”, he said, “Will you move my amendment for me, then?”.

The amendment would change the requirement in the clause that the supplier “knows” or is being “reckless” as to whether the recipient would,

“be likely to consume the substance for its psychoactive effects”,

to a requirement that he “should know” that that was the case.

I have seen the letter from the Minister to the noble Lord, Lord Lucas. It seems to me that the examples drawn on by the Home Office to defend the recklessness provision are rather different from the situation envisaged by the Bill. Reference is made to two provisions in legislation where retailers are required to consider the age of a purchaser, and I know that the noble Lord is particularly concerned about retail. A third reference is made to the Licensing Act, under which retailers are prohibited from selling alcohol to people over 18 who are drunk—fair enough.

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6 pm

However, there is a clear distinction between being reckless as to something andwhether one ought to know. In my reading of it, “reckless” means heedless of the danger, although I am sure that there is relevant case law. Examples also used in the letter are about the recklessness test covering who a product is being sold to—for example, whether the individual is known for drug taking or substance abuse; the substance’s intended use, which I think is quite difficult; and whether it would be unusual for a particular individual to purchase such a substance. Again, age is referred to. I do not think that it is quite that easy. I wonder whether a retailer would be more or less reckless if I, a usually well-dressed, middle-class woman, went to buy building materials that could be consumed in some way. My reason for doing so would be that I did not want the builder to break off from his work. Would that be different from the builder, in a dirty T-shirt and torn jeans, going to buy the same materials for the same purpose?

I make one important request of the Minister. I know that the Home Office is considering guidelines for retailers and is working with the Association of Convenience Stores and the British Retail Consortium. I am very sympathetic to their concerns. Will those guidelines have been advanced to a stage that will be helpful to Parliament by the time the Bill reaches the Commons so that the debate on the points that the noble Lord, Lord Lucas, is concerned about can be addressed in the context of the draft guidelines? I beg to move.

Lord Bates: I thank the noble Baroness for presenting this amendment on behalf of the noble Lord, Lord Lucas, who clearly thought that discretion was the greater part of valour, being temporarily absent from your Lordships’ House. This is a subject that he feels very strongly about and one that he raised in Committee. We took that very seriously and it resulted in another letter, on 8 July, to which the noble Baroness has referred.

I signal to officials who may be listening to the debate that I want to respond particularly to the point about the guidance that will be developed as a result of the dialogue that is taking place with the Association of Convenience Stores. I say in parentheses that those stores are very supportive of what we are trying to do because a lot of criminal disruptive activity congregates in areas where there are head shops. That is of concern to their members who are in the vicinity of those shops from a public order point of view. I am therefore keen to be able to provide an answer to the question of when guidance might be available.

For a prosecution to be brought for the supply offence in clause 5(1), the prosecution must show, among other things, that the defendant knew, or was reckless as to whether, the psychoactive substance supplied was likely to be consumed by the person to whom it was supplied, or by another person, for its psychoactive effects. The mental element of the offer to supply offence in Clause 5(2) requires that the defendant knew, or was reckless as to whether, the substance that was being offered was likely to be consumed by the person to whom it was supplied, or by some other person, for its psychoactive effects. In formulating these offences, the mental elements were carefully considered. The Government considered

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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 supplying was a psychoactive substance and likely to be consumed for its psychoactive effects. The Government settled on including the recklessness threshold. A test of “knows or is reckless” is commonly used in criminal law, both in the United Kingdom and other common law jurisdictions. Indeed, the formula is used in Ireland’s Criminal Justice (Psychoactive Substances) Act 2010.

Recklessness is where a person is aware of a risk that a result may occur and unreasonably decides to run that risk anyway. As recklessness involves an actual awareness of the risk, the person’s degree of knowledge, or at least understanding, would be relevant. For example, the degree of knowledge a supermarket worker would have about psychoactive products would be less than a member of staff in a household store used to selling solvents, and less still than a member of staff in a head shop, whose trade is predominately in these substances. The mental state of each would be considered separately.

In seeking to substitute a “should know” test, as the amendment proposes, my noble friend is intending to set a higher bar for prosecution and conviction. We need to bear in mind that the Bill is, in part, directed at stamping out the reckless retail trade in these potentially harmful substances. We know that head shops use a variety of ruses in order to stay on the right side of the law, including labelling their products as “plant food” or “not for human consumption” when they are fully aware that their customers are consuming these substances for their psychoactive effect. The recklessness test is directed at such ruses and, for that reason, we would not want to lose it.

This does not mean that everyone on a checkout at Tesco or Homebase needs to subject all customers buying tubes of glue to a full-on interrogation. But they will need to think twice if two or three young people attempt to buy multiple tubes of glue and nothing else or they are making repeated purchases. The Intoxicating Substances (Supply) Act 1985 already requires a retailer to be alert to such cases, and although that legislation applies only where the supply is to persons under 18, we do not envisage that this Bill will significantly change the burden on retailers. If that were the case, the Association of Convenience Stores would not be among those welcoming the Bill.

At this point I should make it clear that the Home Office intends to work with retail trade associations, such as the Association of Convenience Stores and the British Retail Consortium, on the legislation in the run-up to its implementation. We need to provide simple messaging to ensure that the requirements of the law are clear. As to the timing, we are working with the retail trade associations to produce guidance that meets their requirements. That work is ongoing and we need to see the final form of the Bill. I regret that I cannot commit to having draft guidance ready in time to share with noble Lords while the Bill is still going through its parliamentary stages.

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Once retailers have knowledge of the law, we would expect them to consider who they are selling the product to and make an assessment. For example, what product are they selling, what is its primary use, does it fit the profile of the customer and are there any wider considerations that the retailer can infer from the transaction? The guidance will illustrate the grounds that should be considered.

We need to be reasonable. If a retailer genuinely did not know the law, they need to be educated—the civil sanctions in the Bill allow for this, providing for a graduated response where appropriate—but where retailers either know or are reckless as to the consequences of their actions, they cannot be absolved of responsibility and action can and should be taken.

In any event, the proposed substitution of a “should know” test would be likely to capture some people who would not be caught by the recklessness test. This is because the “should know” test would capture someone who did not appreciate the risk but ought to have known that the substance was likely to be consumed for its psychoactive effects. Such a person would not be caught by the current recklessness test. This would appear to be contrary to the objectives of my noble friend and the noble Baroness who moved the amendment.

I hope that I have been able to satisfy noble Lords on the provisions of the Bill as it relates to retailers and therefore ask the noble Baroness to withdraw the amendment at this stage.

Baroness Hamwee: My Lords, it would be inappropriate for me to take the matter any further. I am sorry that the guidance—or guidelines; I am not quite sure which I should have said—will not be ready. I realised that it would not be ready before Third Reading, but I had hoped that it might be ready for the Commons to take some cognizance of it. I remain a little concerned, but, in the circumstances, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendment 16 not moved.

Clause 6: Aggravation of offence under section 5

Amendment 17

Moved by Lord Rosser

17: Clause 6, page 3, line 20, leave out “or B” and insert “, B or C”

Lord Rosser: The purpose of this group of amendments relating to prison premises is to make supplying or offering to supply new psychoactive substances on prison premises an aggravating feature affecting the seriousness of the offence. It was the Secretary of State for Justice who said in the Commons just three weeks ago that,

“there is an unacceptable level of drug use, both of illegal drugs and so-called legal highs, in our prisons”.

In the same exchange, the chairman of the Home Affairs Committee in the other place said:

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

Official Report

, Commons, 23/6/15; col. 737.]

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A succession of inspection reports produced by the prisons inspectorate, covering Highpoint, Bristol, Liverpool and Deerbolt prisons among others, has shown high levels of use of synthetic cannabis.

There is a market in drugs in at least some prisons, and it can lead as well to incidents of bullying, harassment and debt. The taking of psychoactive substances can undermine safety in our prisons. It may exacerbate unpredictable behaviour and the threat of violence and, in certain instances, increase the risk of suicide and self-harm. In a bulletin this month, the Prisons and Probation Ombudsman wrote:

“The use of New Psychoactive Substances … is a source of increasing concern, not least in prison. As these substances are not allowed in prison, and also because they are difficult to test for, it is possible that in addition to the cases in this bulletin there were other prisoners who had used such drugs before their death”.

The bulletin goes on to look at 19 deaths in prison between April 2012 and September 2014 where the prisoner was known or strongly suspected to have been using NPS-type drugs before their death. Continuing, the ombudsman wrote:

“NPS cover a range of substances, and the precise health risks are difficult to establish. However, there is emerging evidence that there are dangers to both physical and mental health, and there may in some cases be links to suicide or self-harm. Staff and other prisoners may be at risk from users reacting violently to the effects of NPS … Trading of these substances in prison can also lead to debt, violence and intimidation. Once again, this creates the potential to increase self-harm or suicide among the vulnerable, as well as adding to the security and control problems facing staff”.

Drug addiction is a key factor that leads to individuals committing crimes, and if some end up in prison as a result of the crimes that they have committed, they ought at the very least to be in a safe and constructive environment where action can be taken to wean them off drugs and be one part of the process of reducing the prospect of them reoffending when they are released from prison. However, that is not always the case. The prison environment is potentially profitable for a dealer because of the vulnerability of many of the people inside and the fact that it is literally a captive market.

6.15 pm

The Government have rightly made it an aggravating feature of the offence of supplying psychoactive substances if it is carried out within the vicinity of a school where young people are present at the time of the offence. Young people can be vulnerable; so, too, are many in prisons. People who have already committed offences in part or in whole because of drugs may be vulnerable again when they finish their sentence, particularly if they have continued to take such substances in prison. It is the height of irresponsibility, callousness and indifference to vulnerable people, as well as the height of greed, to be willingly involved in the supply of psychoactive substances on prison premises and in the financial rewards that result, whether through doing it during a visit to the prison as a visitor, or as a rogue member of the prison staff, or as a contractor, subcontractor or supplier working at or in the prison, or as the sender of parcels or letters to the prison containing such substances, or through being a prisoner directly involved in the supply chain of such substances, or by whatever other means. For such people, the penalties for the offence need normally to be greater,

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because they know, and we know, that they are deliberately targeting with drugs very vulnerable people in a captive location to make money for themselves, and in so doing defeating the objectives of trying to get such vulnerable people off drugs and thus reducing the likelihood of their reoffending once they have served their sentence, to the benefit of society as a whole. There may of course be some involved who have been coerced against their wishes into playing a minor and unwilling role in the supply chain, but if that is shown to be the case, this would need to be taken into account.

In some cases, the prison authorities may feel that such an offence should be dealt with through internal prison disciplinary procedures; but particularly for those who are not prisoners, playing a very minor role, the courts should be the place for such an offence of supply or offering supply to be heard and dealt with, with the statutory requirement to regard supplying psychoactive substances on prison premises as an aggravating factor when determining the seriousness of the offence.

Obviously, court proceedings are not the whole answer or even the main answer to the problem of new psychoactive substances in our prisons. The ombudsman’s report to which I have already referred called for more training and education about the substances for both prisoners and prison staff. This is an issue that I understand the National Offender Management Service has been and is seeking to address.

The level of seriousness of the offence and the likely associated sentence send a message about how a particular kind of offence is regarded and will be dealt with both now and in the future. I hope that the Government will feel able to accept the amendment, which does not weaken but strengthens the Bill and identifies a further area of particularly serious concern where psychoactive substances are supplied in addition to the vicinity of a school already covered in the Bill; namely, on prison premises. I beg to move.

Lord Kirkwood of Kirkhope: My Lords, Amendments 18 and 20 in this group are in my name and that of the right reverend Prelate the Bishop of Bristol. The theme is the same as that of the other amendments: we are talking about the aggravation clauses in the Bill. Our amendments would enhance the protection available to children under the aggravation clauses in two simple respects: first, by making it a statutory aggravating factor where children live in supported accommodation and are being importuned by potential offenders pushing drugs outside that accommodation; and, secondly, for “vulnerable child” to mean young adults under the age of 18, particularly 16 and 17 year-olds.

I am grateful to the Minister and his officials for their time. Together with the Children’s Society we had a productive exchange, which I found encouraging. I am also grateful for the amount of work done by the church because I know that it has first-hand experience and works closely with the Children’s Society. I hope that the right reverend Prelate will add some of his wise counsel and experience to this amendment.

Two points were fairly made in the course of the meeting yesterday and I shall summarise them quickly. The Minister’s view is that the non-statutory Sentencing

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Council’s guidelines as currently cast are sufficient. Having reflected on that—it is a fair point to make—I think the House would need to bear in mind that sentencing guidelines are, after all, merely additional factual elements that the courts are not obliged to consider when they weigh in the balance whether to upgrade or downgrade the severity of the sentence in the context of the facts and circumstances of the case in front of them. I do not think we are in agreement on the relative value of non-statutory versus statutory aggravating circumstances and I hope the Minister will reflect on that.

The evidence available to me is that young, vulnerable children are a magnet for drug-pushing offenders. Drug pushers know how to target them and there is evidence that that is happening. There is evidence from the Children’s Society, which I had not seen before—it makes sense when you think about it—that there is an unjustified, assumed prejudice that the hoodie image of 16 to 17 year-old equates to young people being the authors of their own misfortune. In an insidious way, that plays into some elements of the criminal justice system which think that they are not in need of protection. That is wrong. We need to be clear that many of these 16 and 17 year-olds, although they may present publicly in a threatening or quasi-threatening way, are vulnerable and that some of their behaviour is a result of the damage they have experienced in earlier stages of their lives. We need to discount the negative attitude to younger people when we are considering the protection that they need. They are specifically targeted, both sexually and criminally, by the criminal fraternity. They are very vulnerable and protecting them by making the aggravating factor a statutory protection would help them.

At the meeting yesterday, the Minister again fairly made the point that it is quite tough—the noble and learned Lord, Lord Mackay of Clashfern, made a valuable contribution against me—to define an area outside sheltered accommodation because how would the potential offender, the drug pusher, know that he was outside such a premise? The evidence from the Children’s Society that I saw was compelling. I am not saying that the noble and learned Lord, Lord Mackay of Clashfern, is naive, but in this day and age it is naive to think that people who are about this kind of nefarious business do not know precisely where the 16 and 17 year-olds who are most vulnerable can be found. It would only take you 10 minutes in any local community to find out information of that kind. However, it is difficult to define in statute. When you are trying to prove mens rea beyond reasonable doubt, that is not a defence. It is too easily available to offenders who are arraigned at the bar on a charge of that kind.

My response to that would be that for that reason there is not a great deal of difference between that and being outside a school. The definition of being outside a school in the sentencing guideline is broadly drawn. It includes bus stops on the way to school and places where children gather an hour before and an hour after school. It is not only standing at the school gate that would be a bang-to-rights aggravating factor in the circumstances of any case. The context of supported accommodation is pari passu with the school provision

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that already exists in the 1971 Act. Indeed, these amendments seek to create a parity and similarity. They are modelled on the provisions of the Misuse of Drugs Act 1971.

These amendments seek to send a strong signal to members of the criminal fraternity that if they do this they cannot avoid the consequences of an aggravating factor being introduced into their sentencing. They will ensure consistency with the provisions of the 1971 Act, oblige courts to take such circumstances into account and increase protection for vulnerable 16 and 17 year-olds.

Again I thank the Minister and the right reverend Prelate for their support for these amendments. These may be narrow points but for the young people for whom we are trying to provide additional protection they are extremely important. I am grateful for the careful consideration the Minister has given to these points and I look forward to hearing what his attitude is now that he has had the chance to reflect further overnight on the useful meeting we had yesterday.

The Lord Bishop of Bristol: My Lords, I was glad to add my name to the amendments in the name of the noble Lord, Lord Kirkwood, and I thank him for his clear exposition of why they are important. They are intended to strengthen the legislation although, as a result of the conversations with the Minister yesterday, we recognise that there might be some practical difficulties around them. Nevertheless, I hope the Minister will listen carefully and continue the exemplary way in which he has been prepared to engage with colleagues on this issue. I thank him for that.

These amendments are important for a number of reasons. First, those of us who have any kind of jurisdiction around our cities at this time know full well that there are ruthless men and women who will go to any ends to exploit whoever is exploitable—and, of course, children and young adults are a very exploitable group.

Secondly, the Children’s Society—I am grateful for its briefing around this subject—recently polled some 16 and 17 year-olds who had felt the pressure to take drugs and to misuse alcohol. Those who have been able to withstand that pressure made it very clear that the reason they were able to do so was because of the positive impact of their families on the decisions that they might or might not have made. The flip side of that is that children who have no family in their immediate vicinity are made even more vulnerable by the fact that they may not be living with their family or may have lost contact with them altogether. This is a strong reason for the Minister to give careful consideration to these amendments. As I say, they are meant to strengthen this legislation.

Drugs in general but alcohol and psychoactive substances in particular are supplied not as an end in themselves but as a tool to groom children. Last year in my city 13 men were imprisoned for giving alcohol and drugs to young women and girls, some as young as 13. In return for supplying them with drugs, the girls were expected to have sex randomly with older men. I am sure that all noble Lords are repelled by such things.

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6.30 pm

I am told that in the north-east a group of young men in so-called supported accommodation was targeted by older men looking to exploit them through criminal activity. The giving of psychoactive substances for free gave these ruthless men the opportunity to say to the young men, “You are now indebted to us and you will pay back your debt with interest”. The result was that they were deployed in aggressive begging and criminal activity. In a way, “supported accommodation” is a bit of a misnomer. These premises are not regulated in the same way as children’s homes. Some 16 and 17 year-olds can be in the company of people who are being rehabilitated from drug addiction or have come out of prison.

I am concerned that careful consideration is given by the Minister and your Lordships’ House to these important amendments. I realise that there is an issue of whether these amendments should be put in legislation or whether they can be dealt with by sentencing guidelines. I believe that there is a problem and would not want to quell any discussion. If this may be a way forward, a note of caution needs to be sounded. There is some anxiety that these older children, to whom the noble Lord, Lord Kirkwood, drew attention, might be overlooked. There is some feeling that, by the age of 16 or 17, a young person might be able to make up their own mind. Therefore, I am not quite sure whether covering this in the sentencing guidelines will give the protection that the noble Lord and I would like.

Let me end where I began, by expressing the firm hope that the Minister, who has been excellent in his engagement over these amendments, might be willing to continue to further discuss these matters. I should be grateful to hear what he has to say this evening.

Lord Paddick: My Lords, I have put my name to the amendments of the noble Lord, Lord Rosser, in relation to prisoners. In Committee, I was not convinced but what I have learned subsequently has made me very much a supporter of these amendments. Earlier today, we heard the noble Lord, Lord Ramsbotham, talk about the report by the Chief Inspector of Prisons and how it highlights the problems caused by new psychoactive substances in prisons. This morning on the BBC Radio 4 “Today” programme, a prison governors’ representative put new psychoactive substances at the top of the list in terms of what was causing more deaths and violence in prisons. He put it above overcrowding and lack of staffing.

A friend who is a doctor told me that he has to commit people to mental hospitals because of psychosis caused by new psychoactive substances. When one thinks of the increased dangers for people who have psychotic episodes as a result of taking these substances in a confined space such as a prison, the potential consequences clearly make this a serious issue.

The clincher for me is that prisoners are using these substances because they are not detectable in the routine drug testing of prisoners. A deterrent for prisoners who might want to use controlled substances under the Misuse of Drugs Act is that they would show up under those tests. The fact that prisoners are being pushed into using new psychoactive substances because they do not show up in these tests requires an additional

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sanction against those who supply these substances in prisons. That is why I very much support the amendments tabled by the noble Lord, Lord Rosser.

I turn to the amendments spoken to by my noble friend Lord Kirkwood of Kirkhope and the right reverend Prelate the Bishop of Bristol. The Minister talked about an anomaly when we discussed an earlier group. The anomaly is that selling these substances in the vicinity of schools is covered but that selling in the vicinity of other premises where there are vulnerable young people is not. Supplying these substances to people under the age of 18 again should be an aggravating factor.

I think that in Committee there was a discussion about this amendment not being reflected in the Misuse of Drugs Act, which is why there now is a further amendment tabled by my noble friend Lord Kirkwood to amend the Misuse of Drugs Act in a similar way. I would welcome hearing the Minister’s response as to why it is not an anomaly that schools are covered but other types of premises are not.

Lord Blencathra (Con): My Lords, I apologise that I have not been able to be here for the whole debate. I had meetings earlier and I have others tonight. I thank my noble friend the Minister for the amount of information he has supplied. Indeed, I have not had enough hours in the day to read all the PDF attachments in my email inbox. I am sympathetic to one of the amendments; namely, that relating to children’s homes or places which hold vulnerable children, or whatever is the current correct terminology. Clause 6 creates an aggravated offence for selling drugs outside a school. It seems to me an anomaly if we do not include places which hold even more vulnerable children than those in schools.

I think that in Committee my noble friend said that one of the difficulties would be that everyone can see where a school is—there are big signs and lots of children—but that drug dealers might not know when they are selling drugs in the vicinity of a children’s home. I do not think that that will wash. The bad guys selling drugs know every potential outlet better than anyone else. They will know when there is a children’s home and a potential outlet nearby, and they will target it. I would like to hear from my noble friend the practical difficulties about including children’s homes or places which hold vulnerable children. It seems to me that they are even more important than ordinary schools.

For a few reasons, I am not so sympathetic on the point about prisoners. Drugs are a problem in prison but they should not be. There is no excuse for drugs being in prisons but certain excuses are used. We have, in my view, the ridiculous situation of completely free association. Wives and girlfriends can freely mingle with the prisoners, most of whom are male. They can hug, kiss and cuddle, and they have every opportunity to pass on drugs. I have never understood why we do not have a system where there is a glass screen between the visiting friends and relatives, and the prisoners, so that drugs cannot be so easily passed on.

In 1993, my noble friend Lord Howard of Lympne went to the Home Office. He decided to crack down on drugs and introduced springer spaniel sniffer dogs to some prisons. Two things were immediately noticeable.

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First, as soon as the relatives saw the dogs, they had to return to their cars to deposit the goodies that they were about to take into the prison. Secondly, there was resistance from a large number of prison officers and governors about the policy. I apologise to that very trendy trade union, the Prison Officers Association, if I misquote it. However, I was told at the time by prison officers that, if you are looking after 700 men in prison, you have to reduce the tension level. The way to reduce the tension level then was to let them have illegal access to drink, drugs and pornography. That reduced the tension levels, they said. Therefore, I do not have much sympathy for prison governors who say that there is a problem with drugs in prisons and the Government should do something about it. They have it in their own hands to tightly control drugs in prisons. However, if the noble Lord, Lord Paddick, is right that it is impossible to test for some of these psychoactive substances, we need to make sure that visiting relatives are not able to pass them on. I would be amazed if little sniffer dogs were unable to detect them. It may be difficult to do so with a blood test, but we now read in the press about sniffer dogs which can detect almost anything. Some dogs can detect whether you are about to have an epileptic fit and it should be possible to have a tighter control regime.

Finally, why stop at prisons? I consider nightclubs to be an even bigger problem. If we are to have an aggravated offence of selling drugs outside schools, what about an aggravated offence of selling them in nightclubs, or near nightclubs where young people hang out? Again, that is a large captive audience. Perhaps we should have an aggravated offence for people in positions of responsibility who commit this offence. A tiny minority of military officers or police officers may be tempted to commit this offence, but perhaps it could be an aggravated offence. Off the top of my head, I can think of a few areas where I would like to see an aggravated offence introduced, but it may be best to restrict it to schools, with the possible addition of children’s homes.

Lord Howarth of Newport: My Lords, whatever I may think about the general principle of the legislation, if we are to have it, I am sure it is right that there should be aggravated offences where the interests and protection of children are concerned. I support the extension of that principle to prisoners. I applaud my noble friends for tabling their amendments and other noble Lords for their amendments, and for supporting the various amendments in this group.

I say to the noble Lord, Lord Blencathra, who is set fair to close down the whole country, as far as I can see, that I understand that one of the difficulties that prison governors now face is that it has become a not uncommon practice for family members to send letters to prisoners on paper which they have previously soaked in a psychoactive substance. When the prisoner receives the letter, the thing to do is to smoke it. Therefore, this is not as straightforward an issue as the noble Lord, of course, with his experience, very well knows. However, these are good amendments and should be supported.

6.45 pm

Lord Harris of Haringey (Lab): My Lords, I support the amendment of my noble friend Lord Rosser. As some of your Lordships know, I have spent a certain

14 July 2015 : Column 512

amount of time in the last year or so visiting prisons in respect of the review that I have carried out for the Ministry of Justice on self-inflicted deaths of young people in prison. Psychoactive substances were not a prime element of our report, although the Prisons and Probation Ombudsman’s report issued in the last few days highlighted their increasing significance. I was struck by a discussion with the head of healthcare in an establishment who, when I asked about the level of drug use in the prison, said instantly one word, “Rife”, to the embarrassment of the deputy governor accompanying us. That goes to the point made by the noble Lord, Lord Blencathra, about the prevalence of drugs in prisons, and the growing proportion of them which are these new psychoactive substances. The reason they are a growing proportion is because of their undetectability and the fact that it becomes more difficult to identify and prevent them. That is why it is important to have an aggravating factor with regard to the supply of these substances in prisons.

The Government have already legislated to prevent people throwing things over the prison wall. Although that has been reported to me as a significant problem, I am not convinced that it is the main source of drugs in prisons, nor do I think that it is the most difficult source of drugs in prisons to deal with because it is pretty obvious where things have been thrown over the wall and no doubt somebody could pick them up before the prisoners do so. However, drugs brought in from outside are often brought in by individuals. The noble Lord, Lord Blencathra, talked about issues with visiting families and friends. I think that we should also examine the possible role of prison officers in this regard. Although this is not relevant to the report I was doing, I noticed the very different search regimes that exist in prisons for visiting dignitaries such as myself and those who are visiting because they are friends or family of prisoners, all of whom are subjected to fairly rigorous search regimes these days, and the apparent complete absence of similar search regimes for prison staff. These things should be examined as there is clearly a mismatch in that area.

Again, it was right for the noble Lord, Lord Blencathra, to highlight the fact that there seems to be an underlying current of people saying, “The only way that you can maintain good order in prisons is for there to be a certain level of availability of these things”. That is not the right approach—the right approach is to ensure that there is sufficient staffing, purposeful activity and focus on education and rehabilitation in the prison to ensure that availability of these things is no longer the mechanism to deliver good order. In the context of the report from the Prisons and Probation Ombudsman in the last few days and the report issued today by the Chief Inspector of Prisons, and given the level of the problem that exists in prisons, I hope that the Minister will feel able to accept my noble friend’s amendment.

Lord Mackay of Clashfern: My Lords, there is no doubt that one can think of serious aggravating factors in relation to these offences. In Committee I supported the amendment tabled by the noble Lord, Lord Rosser, and the amendments proposed by the noble Lord, Lord Kirkwood. However, I understand the difficulty that there are so many possible aggravating factors

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that it is very difficult to cover them all adequately, and that as they change and the circumstances change, the description of these aggravating factors may change. One of the problems is that, if you specify aggravating factors, the courts are apt to proceed on the basis that these are the aggravating factors that Parliament thought were important. Therefore, when the judge comes to pass sentence, he is inclined to give these full emphasis and possibly place less emphasis on other aggravating factors that may occur in a particular case.

At the time of the introduction of the Misuse of Drugs Act, when provision was made for aggravation, the statutory system of sentencing guidelines which has since been introduced did not exist with its statutory authority, which is binding to a substantial extent on the discretion of judges. That system has the great advantage of flexibility. To take the example of children’s homes, let us suppose it emerged that the people who were seeking to take advantage of vulnerable children had changed their method and, instead of trying to give these drugs out near the children’s home, found some way to get them into the children’s home so that they were possibly given to the children by others. I do not know exactly how this sort of thing might happen, but these situations can develop. These people are set on trying to overcome any obstacle to distributing their drugs to all who will take them, and to a greater and greater extent, if possible. I wonder whether it would be best no longer to have a provision for particular aggravation in the individual statute, but to rely on—and if necessary make reference to in the individual statute—the sentencing guidelines system, which is a flexible, influential and effective system within the criminal justice system as a whole. That has certain advantages, but it certainly would not work against a background in which a new Bill had other aggravating factors. Then, the question is, are the sentencing guidelines’ aggravating factors more or less important than those in the statute, if they happen to be different?

As I have said, I support the theory behind the amendments, but I wonder whether the more effective way of operating this within the criminal justice system is to make these amendments references to the sentencing guidelines. Instead of having a list of aggravating circumstances—conditions A, B and C—perhaps the statute before us should refer to the fact that aggravating circumstances are set out under the sentencing guidelines, for which the Coroners Act has statutory authority. That might be a more effective way of dealing with this matter—focusing on individual circumstances that are important and may change. Both the circumstances referred to—involving children, and prisons—are vital in the fight against the damage caused by such substances. Therefore, whatever happens, I want an effective method of treating these circumstances as aggravating circumstances to be before the courts on all occasions.

Lord Bassam of Brighton (Lab): Minister.

Lord Bates: Thank you. I always get a little bit worried when the opposition Chief Whip appears in the Chamber towards the end of a debate on an opposition amendment. Anyway, I am sure that it has not pre-empted my response.

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I want to put on the record that the noble Lords, Lord Rosser and Lord Kirkwood, are raising matters of enormous importance. That is why when they were raised in Committee, we undertook to reflect deeply on what was said. We organised a meeting with the Children’s Society, and there have been conversations since.

It would be helpful for those who picked up on the point made by my noble and learned friend Lord Mackay to be aware of the context in which we have to consider these amendments, because it is not immediately straightforward—or at least, it was not to me. The Misuse of Drugs Act 1971 contains no aggravating factors —the point that my noble and learned friend referred to. They were introduced in the Drugs Act 2005, which amended the 1971 Act and introduced an aggravated offence of supplying a controlled drug in the vicinity of school premises. The Coroners and Justice Act 2009, which was introduced under the previous Labour Government, stipulated that the courts must have regard to the sentencing guidelines. So, we moved from having nothing to having several statutory aggravating factors, and then to the commitment that the courts must not only pay due regard to but follow the sentencing guidelines. In February 2012, the Sentencing Council issued drugs offences definitive guidelines, which are the ones the courts are currently working from.

The guidelines describe the statutory aggravating factor:

“Offender 18 or over supplies or offers to supply a drug on, or in the vicinity of, school premises either when the school is in use as such or at a time between one hour before and one hour after they are to be used”.

Because that was put in the 2005 Act, which amended the 1971 Act, we, in preparing the Psychoactive Substances Bill, decided to follow through with that statutory provision. That is how we have arrived at this point. It was not a case of wanting to include some things and not others; we were simply following through in a consistent way the existing statutory amendments to the Act.

However, the sentencing guidelines provide other aggravating factors, for example:

“Targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18”.

That is very clear guidance. As a result of the 2009 Act, the courts have to follow that guidance.

Some particularly powerful examples have been given in the debate, for example by the right reverend Prelate the Bishop of Bristol. Others were drawn from the Children’s Society, a meeting with which the noble Lord, Lord Kirkwood, and the right reverend Prelate the Bishop of Portsmouth attended yesterday. We listened to examples whereby new psychoactive substances are used as a tool to groom young vulnerable children and to lure them into a dependency on criminal gangs. It was reminiscent of the debate we had during consideration of the then Modern Slavery Bill, when we heard about the use of such tools to elicit dependency. However, it is clear that the sentencing guidelines refer to premises in which the intention was to locate vulnerable individuals.

Essentially, the debate on these amendments distils down to whether we deal with everything in statute—in other words, we turn the clock back to before the

14 July 2015 : Column 515

Sentencing Council, before the guidelines, before the coroners’ board and before the 2005 Act—or we take robust action to ensure that the guidelines are updated and reformed to reflect the concerns that have been drawn to our attention, not least by Her Majesty’s Inspectorate of Prisons, as we heard this morning, by the Prisons and Probation Ombudsman, by the Children’s Society and others. Of course, the report of the noble Lord, Lord Harris, on deaths in custody, was published a couple of weeks ago, and I am sure the Justice Secretary is considering it.

All these things have to be taken into account, and I undertook to explore this issue with my right honourable friend Mike Penning, who leads on this policy area and is a Minister not only in the Home Office but in the Ministry of Justice. In the days when the Home Office used to deal with everything to do with prisons, some of these decisions were slightly easier to make; however, in Mike Penning we have someone who is a Minister in both departments.

We had a long discussion this morning about this. The view was that we wanted to listen carefully to what has been said. It was drawn to our attention immediately, particularly with the potential targeting of children’s homes and accommodation, and the examples that we have heard from the Children’s Society and the church, that action needed to be taken. My right honourable friend the Minister for Policing, Crime and Criminal Justice will therefore be writing to the chair of the council, the Right Honourable Lord Justice Treacy, to draw this debate to his attention and to invite the council to take your Lordships’ views into account when considering what changes to the guidelines on drugs may be required as a consequence of the enactment of this legislation. That is going to happen.

I think and I hope that that might go some way to addressing the amendment of the noble Lord, Lord Kirkwood, in particular, and with the promise that we want to continue the dialogue with the Children’s Society, which I thought was immensely helpful, as this legislation goes through—

7 pm

Lord Kirkwood of Kirkhope: I am grateful to the Minister for that very helpful suggestion. For the avoidance of doubt, the intention of our amendments is to treat school environments and supported accommodation environments pari passu within the legislation so that they are on a par. I am agnostic about where the provision lies as long as they are treated equally across the legislative platform.

The other thing, of course, is that there is a different set-up in Scotland. I hope that the offer the Minister has made to write would be to other jurisdictions and criminal justice systems within the United Kingdom—if he has that power.

Lord Bates: I am looking for counsel from the noble and learned Lord, Lord Hardie, as a former Lord Advocate, as to whether we have that power. We talked about that yesterday. I think Scotland is in the process of establishing a sentencing council—

14 July 2015 : Column 516

Lord Hardie: Perhaps I might assist the House. Of course, this is a devolved matter and it would be for the Scottish Parliament to deal with the question of sentencing. But the reality is that the courts in Scotland take into account aggravating factors such as drug offences committed in prison, and it is a matter of practice in Scotland that judges will impose a higher sentence on someone who has introduced drugs into prison. I am pretty confident that that would follow in Scotland if this Act comes into being.

Lord Bates: I am very grateful for that. Perhaps we should take a little bit more time over this. There are some provisions in the current statutory guidance; for example, if the offence occurs in the vicinity of a school one hour before or one hour after—so the vicinity of a school is defined. My first instinct—this is not our official position because we are discussing this—is that the terminology should be something around targeting any premises intended to locate vulnerable individuals or the supply to such individuals, so perhaps a broader range might be helpful in this regard. That will certainly be contained in that provision. We are going to write to the Sentencing Council. We will wait to see whether the Sentencing Council responds as quickly as the ACMD to letters from the Home Office, but we may have some responses in the latter stages of the Bill as to what its thinking is.

Whether we use the sentencing guidelines or statute to tackle these issues, particularly prisons—and I am very mindful of the examples that were given and, of course, the remarks of my noble friend Lord Blencathra about anomalies—in the current statutory sentencing guidelines aggravating factors include an offence committed while on bail or licence, but there does not seem to be reference to an offence committed while being detained in prison. Of course, that is because the argument is that these are covered by prison regulations but there is no doubt, just as the Children’s Society said, that over the past few years new psychoactive substances have gone from being an issue that was barely ever mentioned to now being its top concern. To have that example given this morning on the “Today” programme, with someone saying that this comes ahead of many other pressures—top of the list of concerns—shows that it is clearly growing in importance. Of course, the intervention of the ombudsman adds to that.

In the light of that and the letter that my right honourable friend Mike Penning will write to the Sentencing Council to ask it to take into account the views expressed in your Lordships’ House in this debate, including on this amendment, about the problem of these new psychoactive substances in prisons and on the prison estate, it may be that there is scope to go further on this issue. But I would be very happy to continue a discussion with the noble Lord, Lord Rosser, about how we might go further, particularly on whether the personal possession of new psychoactive substances in prison should be an offence. I am very happy to look at whether we could go further on that and perhaps look at an amendment that could be introduced later on.

I should also make the point that going down the route of the sentencing guidelines we have laid out here is probably more likely, because it goes with the grain

14 July 2015 : Column 517

of the current process of advising on sentences and for the courts to have regard to that. We should wait to see the Sentencing Council’s response to my right honourable friend Mike Penning’s letter, which has either gone today or will go tomorrow, and see if there is more that can be done at a later stage. I believe that we are travelling in the same direction here. We recognise that this is a growing problem. We want to deal with it and it is a question of what is the most effective way to ensure that yet again we do not create unintentional loopholes, which are exploited by the people who are the very target of this legislation. In that spirit, perhaps the noble Lord might consider withdrawing his amendment.

Lord Rosser: Before I respond, could I be clear about what the Minister is or is not offering? Is he offering to come back at Third Reading on this issue? I sense that he is not, but he is the one who has to tell me if he is talking in those terms, which obviously would influence my decision. He has not, as I understand it, made any commitment to provide amendments along the lines we have suggested when the Bill reaches the Commons either. If I have understood him correctly—that he is not offering to come back at Third Reading on this issue of prisons and he is not offering to table amendments along the lines of our amendment in relation to prisons when the Bill is in the Commons—that will influence what I have to say. But I am asking the Minister to say whether he is offering to come back at Third Reading or to table amendments along the lines of our amendment to the Bill when it gets to the Commons.

Lord Bates: The principal point, which is about dealing with the issue of prisoners, is partially dealt with by the action that is being taken today or tomorrow—we do not have to wait until Third Reading—which is the letter from the Minister for Policing, Crime and Criminal Justice to the chair of the Sentencing Council, asking him to take into account the views of your Lordships’ House expressed in these two areas.

The noble Lord will know, from when he was in government, that a certain process needs to be gone through before formal amendments can be laid. To be entirely frank, I doubt whether I can go through all that process of the communication with the different departments and get the clearance to lay an amendment in time for Third Reading. It is likely to be when the Bill arrives in another place. None the less, I hope that the noble Lord might feel that there is enough there, along with our good will in supporting the thrust of what he is seeking to do, for him to withdraw his amendment at this stage.

Lord Rosser: The Minister has not given me a commitment to come back at Third Reading, and I am not surprised. Neither is there a commitment that when the Bill gets to the Commons, amendments along the lines that I am proposing will be put into the Bill by the Government. I think that is a fair summary of what the noble Lord has said.

Lord Bates: I am sorry to intervene on the noble Lord, but he may end up with something better for tackling the problem in the response of the Sentencing Council to the concerns raised in this debate by him and by others.

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Lord Rosser: I am also reflecting on some of the arguments that have been made. There is an argument in relation to the 2005 Act; there have been others as if to say, “We don’t want to put things in the Bill because circumstances may change”. In thanking all noble Lords who have spoken in this debate, I say that the reality is that—for the reasons that the Minister explained —the Bill contains a provision that it will be an aggravating feature to supply or offer to supply such substances in the vicinity of a school. Indeed, as I understand the Minister to have said, that has been in legislation for some time. In other words, this issue has not arisen and then suddenly moved on or disappeared.

Likewise, the issue of drugs in prison is not particularly new. We have an issue with new psychoactive substances because they are relatively recent. We are also in a situation where the issue is clearly significant in prisons. It has been commented on by the Chief Inspector of Prisons and by the ombudsman. It has even been commented on by the Secretary of State for Justice. I do not think that the Minister is going to come to the Dispatch Box and tell me that he has any reason for believing that the issue of drugs in prisons is going to disappear in a short time.

This is an issue which needs addressing, and in the same way as the issue of supplying or offering to supply in the vicinity of schools has been addressed—namely, by making it a statutory aggravating feature reflecting the seriousness of the offence. It is of course then for the court to determine what the sentence will be in the light of that aggravating feature. The Minister has said that this is an opportunity and that we can express our views. The best way to do that would be by taking a vote to see whether the House is of the view that such an offence—of supplying or offering to supply new psychoactive substances on prison premises—should be an aggravating factor increasing the seriousness of the offence, as it will continue to be under the Bill for supplying in the vicinity of a school.

We already have that continuing provision in the Bill about supplying or offering to supply in the vicinity of a school. In the light of that, the argument has been made that there is an equally serious issue in relation to our prisons—and frankly, there is no evidence that it is about to disappear. The problem in relation to drugs has been there for some time. The issue of the new psychoactive substances is an opportunity for the House to express its view that it should be an aggravating feature affecting the seriousness of the offence. The court would then have to decide what the sentence will be by taking that into account. I wish to test the opinion of the House to see whether it agrees with me on that.

Lord Bates: Before the noble Lord sits down, just to be clear to those who are listening to this point in the debate, we are not arguing about whether it will be an aggravating factor. The Minister has written to the chair of the Sentencing Council, so it is not in doubt that we are looking at ways in which it will be an aggravating matter. The question is whether it should be a statutory one on the face of the Bill or one which, as a result of legislation which his Government passed in 2005 and 2009, now rests within the responsibility of the Sentencing Council to determine. That is really what is at issue.

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Lord Rosser: When it comes to being a statutory aggravating feature affecting the seriousness of the offence, the issue is whether it will be on a par with supplying in the vicinity of a school. I wish to test the opinion of the House on that.

7.15 pm

Division on Amendment 17

Contents 178; Not-Contents 139.

[The Tellers for the Contents reported 178 votes; the Clerks recorded 177 names.]

Amendment 17 agreed.

Division No.  2


Adams of Craigielea, B.

Addington, L.

Allan of Hallam, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bakewell of Hardington Mandeville, B.

Barker, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley of Knighton, L.

Birt, L.

Blair of Boughton, L.

Blood, B.

Bonham-Carter of Yarnbury, B.

Borrie, L.

Bradley, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Belmont, L.

Burnett, L.

Campbell-Savours, L.

Carter of Coles, L.

Clark of Windermere, L.

Clement-Jones, L.

Collins of Highbury, L.

Corston, B.

Coussins, B.

Crawley, B.

Davies of Oldham, L.

Desai, L.

Dholakia, L.

Donaghy, B.

Doocey, B.

Drake, B.

Dubs, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Fearn, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

German, L.

Giddens, L.

Glasgow, E.

Golding, B.

Grantchester, L.

Greaves, L.

Hamwee, B.

Hanworth, V.

Harris of Haringey, L.

Harris of Richmond, B.

Haskel, L.

Haworth, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hollins, B.

Hollis of Heigham, B.

Hope of Craighead, L.

Howarth of Newport, L.

Howells of St Davids, B.

Howie of Troon, L.

Hughes of Woodside, L.

Humphreys, B.

Hussain, L.

Hussein-Ece, B.

Janke, B.

Jolly, B.

Jones, L.

Jones of Whitchurch, B.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kerr of Kinlochard, L.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Kramer, B.

Layard, L.

Lea of Crondall, L.

Lee of Trafford, L.

Lennie, L.

Lester of Herne Hill, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Ludford, B.

McAvoy, L.

McDonagh, B.

Macdonald of River Glaven, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McNally, L.

Maddock, B.

Mallalieu, B.

Manzoor, B.

Marks of Henley-on-Thames, L.

Massey of Darwen, B.

Mawson, L.

Maxton, L.

Mendelsohn, L.

Miller of Chilthorne Domer, B.

Morgan of Ely, B.

Morris of Handsworth, L.

Newby, L.

14 July 2015 : Column 520

Northover, B.

Nye, B.

O'Loan, B.

O'Neill of Clackmannan, L.

Paddick, L.

Patel of Bradford, L.

Pendry, L.

Pinnock, B.

Pitkeathley, B.

Ponsonby of Shulbrede, L.

Prescott, L.

Purvis of Tweed, L.

Randerson, B.

Rea, L.

Rebuck, B.

Redesdale, L.

Reid of Cardowan, L.

Rennard, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Sawyer, L.

Scott of Needham Market, B.

Sharkey, L.

Sharp of Guildford, B.

Sherlock, B.

Shipley, L.

Shutt of Greetland, L.

Simon, V.

Smith of Basildon, B.

Smith of Clifton, L.

Smith of Gilmorehill, B.

Smith of Newnham, B.

Stephen, L.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Stoneham of Droxford, L.

Storey, L.

Strasburger, L.

Suttie, B.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Thornton, B.

Tope, L.

Tordoff, L.

Touhig, L.

Tunnicliffe, L. [Teller]

Tyler, L.

Tyler of Enfield, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Wilkins, B.

Woolmer of Leeds, L.

Wrigglesworth, L.

Young of Norwood Green, L.


Aberdare, L.

Ahmad of Wimbledon, L.

Altmann, B.

Anelay of St Johns, B.

Ashton of Hyde, L.

Astor of Hever, L.

Balfe, L.

Bates, L.

Bew, L.

Black of Brentwood, L.

Blencathra, L.

Brabazon of Tara, L.

Bridgeman, V.

Bridges of Headley, L.

Bristol, Bp.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Byford, B.

Caithness, E.

Callanan, L.

Canterbury, Abp.

Carrington of Fulham, L.

Cathcart, E.

Chadlington, L.

Chisholm of Owlpen, B.

Colville of Culross, V.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Dixon-Smith, L.

Dunlop, L.

Eaton, B.

Elton, L.

Evans of Bowes Park, B.

Farmer, L.

Fellowes of West Stafford, L.

Fink, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Gardiner of Kimble, L. [Teller]

Garel-Jones, L.

Geddes, L.

Glendonbrook, L.

Gold, L.

Goldie, B.

Goodlad, L.

Goschen, V.

Grade of Yarmouth, L.

Greenway, L.

Hardie, L.

Helic, B.

Higgins, L.

Hodgson of Abinger, B.

Holmes of Richmond, L.

Horam, L.

Howard of Rising, L.

Howe, E.

Howe of Idlicote, B.

Howell of Guildford, L.

Hunt of Wirral, L.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jopling, L.

Kakkar, L.

Keen of Elie, L.

Kilclooney, L.

Knight of Collingtree, B.

Lawson of Blaby, L.

Leigh of Hurley, L.

Lexden, L.

14 July 2015 : Column 521

Liverpool, E.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Marland, L.

Mobarik, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Rolfe, B.

Newlove, B.

Northbrook, L.

Norton of Louth, L.

Norwich, Bp.

O'Cathain, B.

O'Neill of Gatley, L.

Oppenheim-Barnes, B.

Patel, L.

Patten, L.

Patten of Barnes, L.

Perry of Southwark, B.

Plumb, L.

Popat, L.

Prior of Brampton, L.

Renfrew of Kaimsthorn, L.

Rogan, L.

Ryder of Wensum, L.

Sanderson of Bowden, L.

Seccombe, B.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shields, B.

Shrewsbury, E.

Skelmersdale, L.

Spicer, L.

Stedman-Scott, B.

Stowell of Beeston, B.

Strathclyde, L.

Suri, L.

Taylor of Holbeach, L. [Teller]

Taylor of Warwick, L.

Trefgarne, L.

True, L.

Ullswater, V.

Verma, B.

Wakeham, L.

Waldegrave of North Hill, L.

Wasserman, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Williams of Trafford, B.

Younger of Leckie, V.

7.27 pm

Consideration on Report adjourned until not before 8.27 pm.

Future of the BBC

Question for Short Debate

7.28 pm

Asked by Lord Fowler

To ask Her Majesty’s Government what plans they have for the future of the BBC.

Lord Fowler (Con): My Lords, the number of noble Lords speaking in this very short one-hour debate on the BBC shows the interest and concern that there is around the House on this issue. Contributions in the debate are obviously very limited in terms of time, but it is to the credit of a former chairman of the BBC, a former chairman of the BBC Trust, a former director-general of the BBC and a range of other experts that they have thought it worth while to speak in it. The hope must be that the Government will take note of the great concern that I think there is in this area and, I might add, organise a much fuller debate than the one we have at the moment.

Even in these black days of policy on the BBC, there are moments of humour. After the Minister’s Statement last week on the transfer to the BBC of the cost of free television licences for the over-75s, I was puzzled why it was impossible to find the usual copy of the Statement from the Printed Paper Office. A little later, I found out what the reason was. The copies had been withdrawn after it had been discovered that the Minister’s briefing had been mistakenly published with the Statement. So, unfortunately, we have been sadly deprived of the lines to take and the “if pressed” answers to questions, but I gather that it did not

14 July 2015 : Column 522

include the famous advice given to one Minister, “This is not a very strong case, but probably good enough for Parliament”.

I remember back in 1986, when Margaret Thatcher personally cancelled a ministerial broadcast that I was about to make on AIDS. We had no reply whatever to the charge that the Prime Minister had vetoed the whole plan; that was exactly what she had done. Later, I saw the less than useful instruction given to our press office—if challenged, it was to say, “Don’t get drawn”. For current Ministers, there are a number of “don’t get drawn” issues on the over-75s Statement. Ministers would be well advised not to get drawn on the conflict between what the Secretary of State said in his previous incarnation as chairman of a Select Committee that the charter process should be open and transparent and that licence fee payers should be consulted about the part that was carried out, in this case, in complete secrecy and behind closed doors. Ministers would be well advised not to get drawn on why the process was carried out without full consultation with the BBC Trust, which we are told is there to represent the licence fee payer. And Ministers would certainly be well advised not to get drawn on why a cut in the social security budget can be passed on to the BBC. As a former Social Services Secretary, I simply wonder at the ingenuity of it all.

It is easy enough to lampoon what has been taking place over the last few weeks, but in fact it is a deadly serious issue. Various colleagues have complimented me on the timing of this debate, but the truth is that I put down the subject some weeks ago, not because of the over-75s or the imminence of the so-called Green Paper but because of stories that had appeared in every newspaper in the land that the Government had declared war on the BBC. As the Daily Telegraph reported on 12 May:

“Tories go to war with the BBC … David Cameron, infuriated by the corporation’s election coverage, appoints BBC critic to ‘sort out the BBC’ ahead of the royal charter review next year”.

My noble friend is a very bright Minister who I know will not try to palm us off with claims that this was just newspaper talk. It was clearly briefing from the top, from No. 10, and it is that which makes it all the more concerning. Frankly, briefings and leaks have been the characteristic so far of what is billed as an open and transparent process. If you want to know what is going on in the discussion on the future of the BBC, do not ask the BBC Trust, read the Sunday Times, which on Sunday had the friendly headline “Taming the BBC Beast”, with a picture of King Kong being attacked over Broadcasting House by aircraft.

I should make my position clear. In my experience, the BBC is under unprecedented attack, but of course I believe that there are changes that can be made. No organisation in the world is beyond that. The BBC Trust itself must come under question and, frankly, had the Government listened to the Lords Select Committee report last time round it would not have been created. The future of BBC Worldwide is also an entirely legitimate area for debate. But changes must take place with the aim of improving the corporation, not undermining it, and I am afraid to say that at the moment that does not appear remotely to be the case.

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I am not going to set out what I see as the merits of the whole vast expanse of the BBC—the drama and music, the television but also Radio 3 and Radio 4. As an ex-journalist, what I find most objectionable is the charge that the BBC is in some way biased. It is not exactly a new charge. Having fought elections with Margaret Thatcher and John Major, I have heard it before. I recall Margaret Thatcher’s comment that, if ever she was tempted to say something nice about the BBC, Denis persuaded her not to. But what never seems to be understood is that the role of journalists and politicians is fundamentally different. One is to report and expose the truth, the other is to persuade and win support. Of course, I recognise that in the heat of an election campaign feelings run high. But the real complaint is not that the BBC is impartial; the real complaint is that the BBC is not following to the letter the very partial guidance given to it by the army of advisers that now inhabits Whitehall.

In my journalistic days, I was taught to be accurate and to be fair. My editor at the Times was William Haley, a former BBC director-general. This has been the hallmark of BBC reporting over the years, whether it is about the complications of Middle East or the rival passions of party politics. If you go abroad, the reputation of the BBC is entirely built on its objective reporting. That is why it is trusted so widely around the world and why so many overseas broadcasters see it as the best in the world. That is why the BBC World Service is so respected; it is trusted to report objectively on what is taking place—it is not the opinionated editorialising of Fox News and, frankly, thank God for that.

However, I fear that I must warn those who support the BBC that we have something of a fight on our hands. The cards are marked and somewhat stacked against us. The advisory group advising the Secretary of State clanks with special interests and past opinions. Even more, the charter process leaves decisions in the hands of the Government, who make much of their Green Paper—but the fact is that, at the end of the day the royal charter process means that they do not have to listen to anyone. They can draw up a new charter and agreement as they please; it does not go to Parliament or come under parliamentary scrutiny. Decisions rest with the Government, and anyone who doubts that should look back to the last time. The BBC Trust was set up against the advice of a whole range of organisations, including my committee.

Fundamentally, what causes me such concern about what is taking place at present is that the BBC is a British corporation rated by most people as a world leader. It is not an organisation badged as British but with control elsewhere. We do not have that number of British-owned world beaters to be careless about our position. I would have thought that, if we had any sense at all, we would want to support the BBC, to improve it certainly but, equally, not to undermine it. I hope that the Government will now do all they can to regain the trust that I fear they have lost in the past few weeks.

The Earl of Courtown (Con): My Lords, I just make the point that there is a two-minute limit on speeches from remaining Peers, apart from the Minister. Once the timer gets to three minutes, a speaker has gone too far and I will interrupt them.

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7.38 pm

Lord Lipsey (Lab): That took up a few minutes, didn’t it?

No director-general of the BBC should ever again be put in the position that the good Tony Hall has been placed in over the past few weeks but, sadly, the form book suggests that it will happen again. In 2010, the licence fee was used to pay for British foreign policy by paying for the World Service. Now, in 2015, the same licence fee payer is being asked to pay for a particularly silly piece of British welfare policy—free licences for the over-75s—with £725 million of it falling on the BBC and licence fee payers. Next time, I expect that the BBC will start paying for the NHS. After all, the NHS provides free specs and enables people to look at the television better. It is that kind of logic—or illogic—that pervades what the Government are doing.

The noble Lord, Lord Hall, is absolutely right to say that the funding of the BBC should be taken out of politics, as it partly was when I sat on the Davies committee on the licence fee back in 1999. After all, keeping politics at a distance from the BBC was one of the main logical reasons for having a licence fee in the first place—it was felt to be a payment for services and therefore out of politics—but I fear that in the corrupted politics of today, it will not happen, not while the licence fee places the hands of politicians firmly around the gonads of a body whose programmes they believe help to determine their electoral fate.

The licence fee has had a good run as a good way of funding, but maybe, just maybe, this will be the end of the road. It would be more honest to replace it with a television tax paid to the Exchequer and have five-year settlements on funding between the BBC and the Government, with the Culture Secretary thus incentivised to fight for the corporation within government rather than, as John Whittingdale has comprehensively done this time—

The Earl of Courtown: The noble Lord is in the third minute.

Lord Lipsey: The noble Earl said we had three minutes.

The Earl of Courtown: I made an error in that.

Lord Lipsey: If the noble Earl made an error, perhaps he will let me finish my speech.

The Earl of Courtown: No, I cannot.

Lord Lipsey: My Lords—

Noble Lords: Order!

The Earl of Courtown: My Lords, I made an error when I said that. It is quite plain from the speakers list that there is a two-minute limit. The noble Lord has exceeded that time.

Lord Lipsey: The Culture Secretary would be thus incentivised to fight for the corporation within government, rather than screwing it as John Whittingdale has comprehensively done.

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7.42 pm

Lord Clement-Jones (LD): My Lords, I entirely agree. I congratulate the noble Lord, Lord Fowler. We have just witnessed a smash-and-grab raid. As five years ago, the Chancellor has treated the licence fee as a piggy bank. The director-general has had no alternative but to look cheerful about it, and all the while the Murdoch press gleefully gets government exclusives. I share the disappointment expressed by Rona Fairhead in her letter to the Chancellor last week about there having been no public debate at all about the licence fee. I think the CMS Secretary’s former colleagues on the Select Committee will be astonished, too.

Despite this, there are still major uncertainties. A Perry report recommendation to decriminalise could have an impact of £200 million. The CPI settlement now also appears conditional. We now at least have a debate going forward about the scope of activity of the BBC and the appropriate form of governance for the BBC, but the Secretary of State for CMS and the Chancellor seem to be in disagreement about whether the BBC should continue with popular programming. There is much talk of the BBC’s online presence but, as the example of Channel 4 shows, younger audiences are increasingly migrating to the internet, catch-up and streaming for television consumption.

There are issues to be discussed, in particular whether the BBC should or could move to a publisher broadcaster model. On the trust, my colleagues and I have never felt that the current structure properly resolves the issues of responsibility for the regulation, governance and management of the BBC. Like the CMS Select Committee, I would favour handing responsibility for regulation, including service licences, to Ofcom, as well as the existing responsibility for the public value test. We must have an open debate, and I ask the Minister: is the Green Paper on track for this week?

7.43 pm

Lord Birt (CB): My Lords, we look to government to be at its wisest when the challenge is at its greatest, yet twice in five years we have seen not wisdom but opportunistic, expedient and unprincipled diktats issued to the BBC in the dead of night, a pistol to its head, absent any democratic debate—diktats that have sidelined the licence fee payers, the trust that represents them, the department concerned and Parliament itself. Above all, these diktats have trampled on the independence of the BBC.

Twice in five years, neither the trust nor the executive but the Treasury has determined how an enormous slice of licence funding—25% in total—should be spent, earmarked for a long string of obligations to which the BBC Trust would never voluntarily have agreed.

This year we celebrate the 800th anniversary of Runnymede, when the arbitrary use of power was first curtailed. It is plain that we now need a Magna Carta for the BBC itself. We need a framework, enshrined in statute and agreed by Parliament, which ensures that nothing like this can ever happen again; which sets out the proper roles of government, the BBC’s regulators and its executive; which outlines a considered, involving and transparent process for settling the level of the licence

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fee or for amending the BBC’s remit; and which enshrines the independence of an institution that is never, ever perfect, but which we should all safeguard and cherish.

7.45 pm

The Lord Bishop of Norwich: My Lords, it seems odd that a Government so keen to promote British values in our schools appear intent on reducing the capacity of a world-renowned British institution. The BBC is increasingly referred to as though it were part of the public sector. It is not. It is an organisation financed not from the public purse but by those who use it. The fact that many of them are also taxpayers is no more relevant than the fact that those who pay their energy bills are also taxpayers. Perhaps the winter fuel allowance will now be transferred to the energy companies. The logic seems impeccable given the precedent established last week.

The BBC has plenty of the faults to be found in all large institutions, including government departments. It has a capacity to waste money on IT projects, but no more so than successive Governments. It can be complacent and bureaucratic, but so can the Church of England and the trade unions. What seems to irritate its opponents is its very success. If it inhibits commercial opportunities, it is only because the BBC is giving licence fee payers what they want.The BBC’s online presence was reduced by 25% following the last charter renewal. Now it seems that the popularity of BBC News online is its very undoing. In what other area of national life is doing something well so disliked? I believe there has been much greater animus against the BBC in successive Governments than there is in the population at large, and it is disturbing that the leadership of the BBC should have been so acquiescent earlier this month for fear of something worse, but I do not blame them.

There need to be changes in the BBC, not least in relation to the BBC Trust, which is now seen as a failed experiment, but what has been revealed of the direction of travel thus far gives little confidence that the BBC will emerge the stronger from it.

7.48 pm

Lord Patten of Barnes (Con): I declare a past interest: for three years, I was chairman of the BBC Trust, to which reference has just been made. I think the BBC is the greatest public service broadcaster in the world. It is not without its faults, and I wish I felt confident that its future was safe in the hands of the present Administration. I do not think that the Prime Minister or the Chancellor want to have as part of their legacy that they began the destruction of this great broadcaster, but I wish I could say the same about my confidence in some of their colleagues and I wish I had a little more confidence in some the adolescent ideologues who dominate so much of this debate with the encouragement of News International and Mr Murdoch’s empire.

The deal that was done last week was appalling—trying to turn the BBC into a branch office of the Department for Work and Pensions is completely ridiculous—and it has left the BBC with £400 million less each year over the next few years. There is no way in which this can be found by cutting the amount spent on digital

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broadcasting. That is impossible. It will have to be found by cutting services and getting out of sports. It is very important that when that happens the Government recognise that it is not the BBC’s fault, it is their fault that that is happening.

I wish I could feel a bit more confident about what is going to happen in future. The Secretary of State has appointed a team of assistant gravediggers, presumably to help him to bury the BBC that we love. The only surprise is that, despite the collection of vested interests to which my noble friend Lord Fowler referred, Mr Murdoch is not actually on the committee. That would have made the future complete.

I very much hope that we will be able to come back to this debate again and again in future. The BBC is a great international and British institution, and we should defend it à l’outrance.

7.50 pm

Lord Haskel (Lab): My Lords, the BBC should be congratulated, but instead it is under attack. Why? Because some accuse it of reporting the news on the bias. Bias is in the eye of the beholder. It is an impossible task to appear unbiased in this world of political ideology. As the noble Lord, Lord Fowler, said, what really matters is the truth, accuracy and timeliness.

The BBC is under attack by right-wing politicians and the right-wing press. Their ideology says that the market ought to offer better value, but in this case it does not. At £12 a month, the licence fee is about one-third or one-quarter of the cost of a subscription to Sky. Its finances are also under attack, and the cost of the pensions exemption is only the latest example. Some mischievously encourage people not to pay their licence fee because they watch via the internet, and that is wrong. Of course there are things to put right. Of course we need to make changes, but openly, not in the recent shoddy, bullying manner described by the noble Lord.

This Government—any Government—should be careful about attacking the BBC. They would do better to work with it and take pride in its success. Why? Because the BBC is part of our DNA, part of the glue that holds us together. It is perhaps the most important cultural organisation in this country and it is our overseas calling card. By attacking the BBC, the Government are also attacking the 96% of the population who switch on and tune in every week for their news, sport, entertainment, information and culture—giving the people what they want. That cannot be good politics.

7.52 pm

Lord Teverson (LD): My Lords, I am speaking in this debate because I want to stand up and be counted as someone who feels that the BBC is a crucially important organisation, not just within this country but internationally. I remember, too many years ago, my father assembling with me a small crystal set. I put my earphones on when I went to bed and, although unfortunately it did not get Radio Luxembourg at the time, it got the Home Service and the Light Service—

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just. From that point, sad to say, as time went on I became an addict to the “Today” programme, both as it was then and later.

As the right reverend Prelate said, the sad and ironic situation is that the BBC has become the victim of its own success. As a parliamentarian, but also as a citizen, I rely hugely on its website, particularly the news website; it is a fantastic resource, nationally and internationally. The World Service, as well as the BBC’s reputation for its other services, really increases the soft power of this country.

The over-75 smash and grab, as it has been described, was something that I found quite shocking. It is a reaction by the Government in Treasury management that should never have happened and is a very bad omen for the future. The BBC is a great institution. It is of great service to us in the UK but is also one of the greatest gifts from the UK to world society.

7.54 pm

Lord Berkeley of Knighton (CB): My Lords, the BBC is subjecting itself to the most stringent housekeeping. Outrageous pay-offs have stopped. Middle and upper management, for many years top-heavy, have been pruned, while on the shop floor as it were—in the studios—the programme makers, engineers, producers and presenters have been pushed to the brink by cuts. Travel for a programme is seldom possible and contributors are offered a pittance or nothing. Imagine the consequences of further amplification of this trend: output and quality will suffer.

Are the Government aware of the very considerable savings that have already been made by the corporation, as audited by the National Audit Office? As an example, I mentioned recently that I had accepted a cut of one-third of my fee for the programme that I contribute to Radio 3. I must apologise to noble Lords that this came out, and was taken up by the press, as a cut to one-third rather than by one-third. On hearing this, a colleague suggested that I should declare a disinterest rather than an interest.

However, I remain passionately interested in and devoted to the BBC for the way in which it enriches our lives. Last Saturday, having watched Wimbledon, I turned to Radio 3 to catch, from Manchester, a recording of the first performance of a major new piece by a highly gifted young composer and clarinettist, Mark Simpson, who burst on to the scene when he won the BBC Young Musician of the Year. This is the essence of public service broadcasting and it comes at a relatively cheap price. Will the Minister confirm that the Government do not wish to endanger that and other invaluable work such as the Proms, which are about to start? The Government are coming perilously close. They should not throw out the baby with the bath-water while it is, in fact, in the process of being changed.

7.56 pm

Lord Grade of Yarmouth (Con): My Lords, it would take me two minutes to declare my interests, so I hope that the House will indulge me and allow me to move swiftly on. I shall make three quick points, none of which I think has been made.

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We must always remember that the BBC is a fantastic, and the most important, engine for growth in the creative industries in this country. We must not forget how much viewers and listeners value the BBC for its lack of interruption by advertisements, which provides a real alternative; we do not cut away from Centre Court to a break, as they do between overs when one is watching wonderful cricket on Sky. I shall leave noble Lords—I had trouble filling the two minutes when I was writing this—with the question posed to me recently by my good friend, the noble Lord, Lord Puttnam, when he asked me if I had travelled anywhere in the world where anyone had ever said to me, “I love Britain but hate your television”. That just never happens.

7.57 pm

Lord Judd (Lab): My Lords, all over the world it would be impossible to think of a profile of Britain without the BBC at the centre of it. It has won loyalty, respect and affection across the whole international community. I can remember, sitting with my father in the war at the age of eight, listening at the end of the day’s broadcasting to the national anthems of every occupied country being played. That is the kind of involvement in the world that has made the BBC so successful, and it is the basis on which the excellence and quality of its journalism have been built—a dedication to truth and principle. If truth and principle become seen as an enemy by the Government, we are in dire straits.

I believe that the BBC belongs to the British people, and it is therefore right that the British people should feel a direct sense of responsibility for it and be directly involved in financing it. We meddle with the standing, respect and integrity of the BBC at our peril, because if that begins to happen then we shall begin to see the disintegration of the moral fabric of this country.

7.58 pm

Lord Roberts of Llandudno (LD): My Lords, I would like to say a word about the BBC as it is involved in Wales. Without the BBC’s funding of S4C, there would not be an S4C channel today. Until about four years ago it was a government payment from DCMS that kept S4C going. That involvement with the Government was then withdrawn. We get a little money, about £7 million, but the rest of the burden is borne by the BBC licence fee. Without that, there would be no Welsh-language television. The Assembly could not afford it—I do not see where it could get the money—so we have to protect the BBC, not only because of itself.

For many years, from the time of Sir Rhys Hopkin Morris, we in Wales have fought for and achieved radio channels in Welsh and English. We then wanted a television channel, and Gwynfor Evans, who some noble Lords might remember, threatened a fast to the death to get the Government to keep their promise to give us a Welsh-language television service. The result is that we are keeping the Welsh family throughout the world together. I can imagine people in the La Trobe Street chapel in Melbourne saying to each other, “Wasn’t that

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a great Eisteddfod we saw from Llangollen this year?”, or possibly, in the Dewi Sant church in Toronto they will say, “There was some wonderful hymn-singing tonight from Llanfairpwllgwyngyll”. We are one family, and the BBC makes that possible through its support for S4C. Thank you for what we have had. I hope that the Government will not interfere in any way to make S4C a difficult channel to maintain.

8 pm

Lord Best (CB): My Lords, I thank the noble Lord, Lord Fowler, for his brilliant speech and for his role as the founder chairman of your Lordships’ Communications Select Committee, which I now have the honour of chairing. In contributing to Parliament’s consideration of renewal of the BBC charter, our committee is now looking at: first, the question of what the BBC is for, including whether its existing six public purposes are still relevant and whether they represent a good way of measuring the BBC’s performance; and, secondly, with regard to the BBC’s funding, whether the current process is the best way of deciding the level of the licence fee. We are now wondering whether it is sensible to continue to consider this second issue.

It would be helpful if the Minister could answer this question: are the BBC Trust and the BBC management correct in their assumption that, along with the other details they have agreed with the Chancellor and the Secretary of State, the licence fee will be increased on an indexed basis for the next five years with a starting level of the current £145.50? Has this matter now been settled, or is the Government’s expectation that, after the wider Green Paper consultation, a new starting point for indexing the licence fee—maybe higher or maybe lower than the present figure—could be substituted for the current £145.50? The answer to this question will greatly help the Select Committee in deciding whether it is worth persisting with the second part of our inquiry.

8.02 pm

Lord Inglewood (Con): My Lords, I begin by explaining to the House that I am chairman of CN Group, a local media company. Two Sundays ago, over my breakfast, I was told by the Sunday Times of recent developments that had been agreed between the Government and the BBC, which came as a surprise. The following Sunday, there was a further surprise, with another report of further developments between the Government and the BBC, some of which appeared to be at variance with what I understood were the facts behind the previous week’s story.

As my noble friend Lord Fowler has said, the relationship between the media and politics has always been tense, as can be seen most recently from the hacking scandal and the Leveson inquiry. The sensitivity of that relationship is why the BBC has been set up under the charter and agreement, which appears to be the preferred option for the Government once the existing charter and agreement expire in 2016. This is why there is a very important need to keep politicians and the Government and the licence fee-funded public service broadcaster at arm’s length from each other. Yet, in this case, it seems that the negotiations between

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them are being orchestrated through discussions that are taking place behind the arras in the so-called smoke-filled rooms. That is not what was originally envisaged.

When I was Minister responsible for broadcasting some 20 years ago I was subject to pressure for much greater parliamentary involvement around the process of charter renewal. Since then, concern about that has grown and is still growing—and rightly so. For this quasi-clandestine ritual to take place does no favours to either the Government or the BBC and does little to encourage confidence in the wider public, viewers or licence fee payers, albeit a number of aspects of what are being suggested seem quite sensible.

My suggestion to the Minister, to echo the noble Lord, Lord Birt, is that the Government should put on the statute book a BBC charter renewal (procedure) Act 2015, which would set out a road map for this process and for future occasions. Thus, things would become clear. I dare say that the Minister will respond that it is an interesting idea, with all the damning overtones that that entails. Rather, in addition, I suggest that she should write to me, and put a copy in the Library, to give full reasons for the Government’s response to the idea.

8.04 pm

Viscount Colville of Culross (CB): My Lords, I am very proud to be a producer at the BBC. I work there because I passionately believe in public service broadcasting. It makes our country a better place—better educated, better informed and with a better understanding of the great political issues that we face. Your Lordships have only to look at America, where there is a very weak public service broadcasting component in television and politics is covered in terms of the drama between the personalities, not the issues. Yet we want to make the BBC smaller. Some 1,000 jobs went last month, and I am told that hundreds more programme-makers will go in the next few months in the run-up to the launch of BBC Studios.

It will also get even smaller. The £750 million that the BBC will have to take on in 2021 will not be cash-flat, as the director-general said. Apparently, the extra money will come from £100 million from the iPlayer licence, but I wonder if that is so, with a generation so good at file-sharing. It is hoped that £100 million will be raised voluntarily from the over-75s. That may be, although it would be very generous, and then, of course, £350 million will come from increasing the licence fee by CPI. However, we know that that will be subject to very harsh negotiations. I fear that this great British institution is threatened as never before, and I am afraid that the vacuum we leave will not be filled with news, information and education.

8.06 pm

Lord Patten (Con): I am concerned about crowding out. Any corporation with a lot of highly intelligent, sparky, creative and commercial types—I speak not just of the noble Viscount, Lord Colville of Culross—is likely to be under continuous pressure to expand into adjacent white spaces. Any corporation with critical strategic foresight, capacity and grip has this under watchful control.

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Yet some reasonable complaints about perceived crowding out are coming from various quarters, whether the exalted or the struggling. The Chancellor of the Exchequer—surely in the exalted quarter—says that he has spotted a bit of empire building by the BBC website into “newspaper land” and away from its core mission. Of the more struggling, secondly, there are local and regional news-gatherers who sometimes complain of onerous competition bearing down on them from above, as do some in the internet new media start-up space.

Thirdly, UK independent producers would like to see more independently produced material going into the BBC and not vice versa. This was most vividly illustrated by the BBC announcement on 2 March of its new division, BBC Studios, to which the noble Viscount has just referred, which apparently aims—and it has been said by the director-general, so it must be true—at an eventually unfettered ability to offer productions to anyone, local or worldwide. That is a change that surely will then need change to the royal charter—the ultimate vehicle for the ultimate crowding out, for sure, of this proposal.

Therefore, I urge that any forthcoming review should seek better for the future to draw some boundaries and define what corporate strategy has not perhaps so clearly done of late.

8.07 pm

Baroness Bonham-Carter of Yarnbury (LD): My Lords:

“The BBC, because of its success … is being constantly attacked … in Parliament … in the press, and the attack is on new and dangerous lines. The aim is suppression. When suppression has been achieved, control may be attempted, but suppression is the immediate objective”.

Those are not my words but those of EM Forster in 1931. So it was ever thus. But those on the attack then did not succeed and they must not succeed in 2015.

I am the Prime Minister’s trade envoy to Mexico, a country where the federal Government have just given the go-ahead for a new national TV network—it is the BBC that they wish to emulate and it is our TV content and formats they wish to purchase. In a study on soft power published today, the UK is named as global leader and the BBC is cited as central to this. I am therefore bemused by this Government being on the warpath against what is a cornerstone, as the noble Lord, Lord Grade, said, of the UK’s creative industries—the fastest-growing sector of the economy—and such a successful ambassador and disseminator of what we believe in across this troubled world.

Then there is the matter of scope and scale. Lord Reith set the rules and they were to inform, educate and entertain. How can the licence fee be justified if the BBC is not allowed to have fun?

The noble Lord, Lord Fowler, made a point about bias. When I sat on his Select Committee, we had Rupert Murdoch as a witness and he told us that he wished Sky News was more like Fox News. Well, it is not, and that is because of the BBC and because of the impartiality of the BBC.

Does the Minister not agree that the BBC is one of this country’s greatest achievements, and can she assure us that this Government will listen to the licence fee payer and what they want, and not to the eight random advisers hand-picked by the Secretary of State?

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8.10 pm

Lord Stevenson of Balmacara (Lab): My Lords, it makes me proud to be part of a group of such quality that is able to address such a major issue as the BBC in tweet-length speeches. It is an amazing achievement and noble Lords have all done brilliantly. I only hope that I match them, at least in brevity.

I feel that we have delivered a charge sheet, and I look forward to the Minister responding. It seems to have four main components. First, the BBC’s future is not safe in the Government’s hands, with the two raids in the last five years and the disregard for the process of the charter. Secondly, the charter has been fixed by the establishment of a cod-advisory committee and no guarantees that proper engagement will take place with licence fee payers. Thirdly, setting off the hounds of war on the BBC means that between now and 2017—time that we should be spending improving the BBC and helping it to get better—those of us who care about the BBC will have to put all our efforts into saving it.

Fourthly, and perhaps most seriously, the charge appears to be that the Government do not understand the fundamental point of having the BBC—the cornerstone of the sort of open and accountable society that we want in this country, the gold standard for other broadcasters, the fulcrum for a competition for quality in broadcasting, and the guarantee of impartiality and fair coverage throughout the United Kingdom. As we have heard, you have only to speak to anybody from outside the UK if you disbelieve any of those points.

I hope that the Minister has some words of reassurance for us, and I wonder particularly whether she can give us an advance of what will happen when the Green Paper is announced on Thursday. But, at the very least, she now knows that the way things are going at the moment is simply unacceptable.

8.11 pm

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe) (Con): My Lords, this has been an excellent debate and I congratulate my noble friend on securing it. Indeed, I was one of the first to compliment him on his expert timing. As is always the case when we discuss broadcasting in this place, and particularly when the BBC is our focus, noble Lords have left the House in no doubt whatever about how much these issues matter, and they have done so in a very focused, excellent two-minute way. I have listened very carefully to all the concerns, although I did not always agree with everything. However, it has set a very useful backdrop to the discussions that we will be having over the next 18 months.

The BBC is a world-renowned institution. It delivers high quality to 97% of the UK population every week. That is up 1% on last year, the noble Lord, Lord Haskel, will be glad to know. It retains a unique importance in the UK’s broadcasting industry and in our collective sense of identity, and it is a brand that is respected and valued around the world—a world beater, indeed. I agree with my noble friend Lord Grade about how much the BBC is valued as one travels around the world.

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The noble Lord, Lord Teverson, will have been very glad to hear—from the noble Baroness, Lady Bonham-Carter, in fact—that a report today has put the UK at No. 1 in respect of soft power. I believe that that is partly thanks to the strength and excellence of the BBC.

Let us look at the BBC World Service as a case in point. Kofi Annan referred to the World Service as,

“perhaps Britain’s greatest gift to the world”.

I am sure noble Lords will agree that it is occasionally able to reach the parts that ambassadors cannot.

Beyond this, the BBC provides a breadth of services and content that we are all able to enjoy. That includes coverage of the Ashes on “Test Match Special”—I agree with my noble friend Lord Patten of Barnes about the importance of sport—high-quality drama such as “Wolf Hall”, the recently relaunched children’s classic, “The Clangers”, and its genuinely pioneering and constantly improving website. As the noble Lord, Lord Berkeley, said, the BBC nourishes musical talent, as well as acting and writing talent—as we were discussing at Question Time today.

The BBC is also unique in the way in which it is funded, and in terms of the level of obligations and expectations placed upon it. A universal licence fee, which must be paid for all viewing of live or nearly live content, brings with it a set of expectations from all licence fee payers—chiefly, delivery on all its public purposes, maintaining the highest quality of original, distinctive content, journalistic independence and integrity, and ensuring value for money for every penny of licence fee spent.

The noble Lord, Lord Berkeley, asked whether the Government are aware of savings already made by the BBC. The noble Viscount, Lord Colville of Culross, gave us an inside track on some of the difficulties. We welcome a BBC that ensures that every penny spent represents good value, and we welcome the work that has been done by the BBC to achieve this, particularly in recent times through its Delivering Quality First efficiency programme.

Clearly, the BBC has faced serious challenges over the 10-year period of the current charter. In all these areas—value for money, governance and accountability, or concerns over quality and balance of coverage—the BBC has on occasion been the subject of some controversy and complaint, not just among parliamentarians but the licence fee paying public more broadly. As my noble friend Lord Fowler acknowledged, change is needed.

One particular area of contention both for noble Lords and in the other place is the extent to which the BBC manages to meet its impartiality obligations, and how best this should be achieved and regulated. Looking ahead to the EU referendum, for example, it will be crucial that the BBC, as with other broadcasters, maintains balance and impartiality in its coverage to ensure the public can make the best-informed choices. We have written to the BBC, other public service broadcasters and Ofcom to say just that.

As we near the end of the current charter, we are also presented with the opportunity, through the charter review, to consider in full the BBC’s activities, its appropriate scale and scope, and how it should deliver

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in the future what is expected of it by all licence fee payers. The noble Lord, Lord Clement-Jones, asked if the Green Paper was on track. I am glad to be able to answer positively and say that a charter review consultation document will be published this Thursday. This will provide another opportunity for this House to discuss these matters, and the document will set out a range of important questions about the future of the BBC and almost every aspect of how it operates. The Government are very clear that the charter review process will be as open and consultative as possible. It will be similar in many respects to the previous review—I look forward to discussing this further on Thursday—and will ensure that the views and concerns of all of us who have a stake in the BBC, as well as the views of the panel, are heard and considered in full.

The sort of concerns that have been raised tonight that are relevant to the debate on the review include: the operating model and governance, as the noble Lord, Lord Clement-Jones, said; its boundaries, which were the concern of my noble friend Lord Patten; the process for the future, which was the concern of the noble Lord, Lord Birt; and the future of the BBC Trust, which the right reverend Prelate felt needed change. On the process point, my noble friend Lord Inglewood suggested a charter review procedure Bill to govern future settlements. As I have said, we will run an open consultation and welcome all such proposals, including those on process, and I am of course happy to write to the noble Lord and respond to the points he made.

Although nobody has mentioned it because of the two-minute rule—other than the noble Lord, Lord Best, who spoke most eloquently—the noble Lord, Lord Best, chairs the Lords Communications Committee, which recently began its own inquiry into the BBC. This will be a valuable, in-depth look at the BBC’s public purposes, which we will all be interested to see. Given the matchless expertise and experience of that committee’s membership, including many Members here tonight, it will undoubtedly be an important piece of work. I hope that we will see the outcomes of some of that work in the spring of next year, and indeed emerging findings, so that those can feed into the review as it progresses.

Last week, we were afforded the opportunity to consider the Government’s agreement with the BBC in respect of concessionary TV licences for people aged over 75. As explained by my noble friend Lord Courtown last week, these new arrangements, which have been agreed with the BBC, are firm but fair and will ensure that the BBC, as a publicly financed body, plays its part in carrying the burden of necessary deficit reduction. This is a point that has not been strongly made: in times of financial constraint, as we find ourselves in now, those with the broadest shoulders need to bear a share of the burden.

I am grateful to the noble Lord, Lord Hall—I think he was described as the good Lord Hall—for saying on the “Today” programme, a great BBC institution, that this represents a strong deal for the BBC, giving it financial stability and the ability to plan for the future, which he believes in for what he called, “this wonderful creative organisation”. Further, he welcomed the

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Government’s commitment to look specifically at modernising the licence fee for the digital age. This agreement also gives good notice for potential changes coming down the line to address changing consumer trends with the revolution of digital.

I acknowledge the concerns that have been raised by noble Lords tonight about this agreement and the funding of concessionary licences for the over-75s from the licence fee. However, if I stand back for a moment, I believe that there is a good balance between the reduction in funding for free TV licences and the new flexibilities, which will provide growing income from catch-up and a reduction in the contribution to broadband.

Additionally, to respond to the noble Lord, Lord Best, although the licence fee has not been settled, because it will be subject to the outcomes of the charter review, the Government have indicated that it will rise in line with the consumer prices index over the next charter period, starting in January 2017.

The noble Lord, Lord Roberts, spoke as he always does of both the BBC and our Welsh language broadcaster. I am sure he will welcome the news in S4C’s annual report that 8.4 million people in the UK have watched S4C in the past year—an increase of around 29% on the previous year. We should be clear that the Government are keenly aware of the importance of S4C and other minority language broadcasters.

In conclusion, I wish to thank once again all who have contributed to tonight’s debate and, in particular, my noble friend Lord Fowler for securing it. I am glad to say that the end of the world is not at hand. Given the BBC’s importance to our daily life, and the content and services that it provides to the UK and the world, we should be clear that no one is seriously proposing the BBC’s abolition. This evening, noble Lords have demonstrated admirably the vital role that this House has to play in the debate on the BBC’s future and in the forthcoming charter review. I am sure, as my noble friend Lord Patten of Barnes said, we will come back to the subject again and again.

8.23 pm

Sitting suspended.

Psychoactive Substances Bill [HL]

Report (Continued)

8.27 pm

Amendment 18 not moved.

Amendment 19

Moved by Lord Rosser

19: Clause 6, page 3, line 42, at end insert—

“( ) Condition C is that the offence was committed on prison premises.”

Amendment 19 agreed.

Amendment 20 not moved.

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Clause 8: Importing or exporting a psychoactive substance

Amendment 21

Moved by Lord Paddick

21: Clause 8, page 5, line 2, at end insert—

“( ) It shall be a defence that the person imported the substance for his own consumption.”

Lord Paddick (LD): My Lords, the amendment is in my name and those of my noble friend Lady Hamwee and the noble Lord, Lord Howarth of Newport, and it reflects a debate that we had on a previous amendment. In Committee, we debated whether or not the importation of new psychoactive substances for someone’s own consumption should be an exemption and not be included in the Bill as an offence. For reasons similar to those given for the amendment on social supply, we now propose that it should be a defence. However, the burden would be on the accused person to show that they had imported the substance for their own consumption. This would get round many of the problems that the Minister raised in Committee on importation. Those concerns included how the Border Agency would know whether or not the substance was being imported for someone’s own use and how we differentiate between the two. This is about arresting people who are importing psychoactive substances but providing a defence if the person can prove that they were being imported for their own consumption. I beg to move.

8.30 pm

Lord Howarth of Newport (Lab): My Lords, I am glad to support the amendment tabled by the noble Lord, Lord Paddick. The Government say that it should not be an offence to be in possession of a substance for your own use. If the consequences of the legislation are similar to those that have been seen in Ireland, the head shops and the UK-based websites will be closed down. We know that the police have been tasked to go after the street dealers zealously. What is most likely to happen is that people will turn to online suppliers based in other countries and will receive packages, at any rate for their personal use, through the mail.

The amendment seems, first, logical. If it is to be legal to possess then you must contemplate some means whereby people can come into possession. Secondly, it seems realistic in the sense that, in practical terms, it will be impossible to close down the online trade. I know that powers are to be taken in an amendment we shall debate later to deal more effectively with packages, but the volume of mail and internet-based business is so huge that it is unrealistic to suppose that more than a tiny fraction of packages containing psychoactive substances will be intercepted. On the grounds of both logic and practicality, this is a sensible amendment and I hope the Government will feel able to accept it.

Baroness Meacher (CB): My Lords, I shall speak to Amendment 56, which refers to Clause 56(2)(a). It is a probing amendment along similar lines to Amendment 21. As there are three different ways in which possession

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can become a criminal offence, the aim of the amendment is to clarify with Ministers the circumstances in which possession is not a criminal offence and those in which it is. I thank Mr Fortson QC for his briefing on this issue.

The Government have emphasised that the Bill does not make simple possession of a psychoactive substance a criminal offence, and I and many others certainly welcome that important step forward in the Bill. We know from the lengthy experience in Portugal, for example, that decriminalising possession there and investing more resources in treatment and less in prisons has resulted in fewer young people being addicted to drugs. That is surely one of our primary objectives. I find it enormously positive that the Government understand that issue and are taking it forward in the Bill.

As I said, there are three situations in which possession can become a criminal offence. If a person produces a psychoactive substance at home, for example by cooking something up in the kitchen, and they intend to consume it purely by themselves, they will have committed an offence. I want to make clear to your Lordships that I am not suggesting that anyone should cook up a psychoactive substance in their kitchen, albeit I have a number of friends who do just that—they create interesting and highly intoxicating alcoholic beverages in their kitchens. It is very easy to be rather hypocritical about these issues. Nevertheless, I wanted to make the point. It is not that I am promoting the idea of young people getting into the kitchen and creating these things. However, one has to think about the inconsistency.

If a young person is thinking about getting hold of a psychoactive substance and goes out to a dealer, buys a substance and goes home, they will not be committing a criminal offence if they are found with the substance in their hand. If they are found to have created, or are creating, the substance at home, they will be committing a criminal offence. It is possible to say that it could be very much safer for a young person to take a substance when they know its ingredients, rather than go to a crack dealer. I gather that that is what has happened in Ireland. As the head shops have closed, young people have gone to the crack dealers, who are doing a nice business with these psychoactive substances. One has to think of the incentive effect of these kinds of inconsistencies.

It is not only a criminal offence to create a substance in your kitchen. It is also a criminal offence, as the noble Lord, Lord Paddick, said, to import a substance for your own consumption. It is also a criminal offence if you export a substance for your own consumption—which might seem a slightly peculiar idea, but it is in the Bill. To illustrate the point, if someone has a psychoactive substance in their pocket, they are not committing an offence if they are at home. However, if they go on holiday with the substance tucked away in their pocket because they have forgotten it is there, and if it is still in their pocket when they come back, they will have committed two offences: importing and exporting a psychoactive substance. I know that that sounds a ludicrous example but one has to be conscious of the kinds of things that arise out of inconsistencies in legislation.

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I understand from Mr Fortson QC—I would not have been aware of it otherwise—that this issue is of some importance. The offences to which I have referred are apparently described as lifestyle offences. Therefore, they trigger the most draconian provisions of the Proceeds of Crime Act 2002. Either the prosecutor or the court could initiate confiscation proceedings under POCA for one of these offences of possession of a psychoactive substance. That would seem, certainly to Mr Fortson QC, to be an entirely disproportionate response to what appears to be a rather insignificant offence. It was he who suggested that I should at least raise this matter in the House and seek the agreement of the Minister to ask her officials to look into these inconsistencies and to explore whether there is a way of finding a resolution that would feel somewhat more comfortable.

Baroness Chisholm of Owlpen (Con): My Lords, as the noble Lord, Lord Paddick, has indicated, Amendment 21 seeks to exclude from the importation offence in Clause 8, the importation of a psychoactive substance by a person for their own personal consumption. Amendment 56, in the name of the noble Baroness, Lady Meacher, aims to do something similar in that it seeks to exclude production for personal consumption from the scope of the offence in Clause 4.

The Government do not accept that there is an inherent contradiction between, on the one hand, making it an offence to import or produce a psychoactive substance for personal use and, on the other, not criminalising personal possession. The Bill is about tackling the trade in psychoactive substances, whatever form it may take, both domestically and internationally. The importation of psychoactive substances, particularly by post, is indisputably a key form of supply. To exclude importation for personal consumption, even assuming you could neatly carve such conduct out of the importation offence, has the potential to drive a coach and horses through the ban on importation. It would be an open invitation for individuals to import numerous small quantities, which they could then combine together for onward supply.

It is also important to mention that the proposal would impose a near impossible task on Border Force customs officials and National Crime Agency officers in policing the importation ban. It is obvious that it would be very difficult and time consuming for them to determine whether a particular consignment of psychoactive substances was for onward supply or for personal use. For example, a person could import a significant quantity of psychoactive substances at one time, claiming that it was a year’s worth of supplies for their personal use.

With a blanket ban, the Border Force will have a clear mandate to seize any substance likely to be consumed by any individual for its psychoactive effects, and where the importation is not for an exempted activity. This will enable it to stop these potentially dangerous substances entering the country. In fact, between 2014 and 2015, more than 3.5 tonnes of new psychoactive substances were seized by Border Force officers. This was a 75% increase on the previous year.

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Once the Border Force has identified a consignment, it can then simply invoke its seizure powers and the substances will be subject to a forfeiture process. In appropriate circumstances, the National Crime Agency will wish to investigate further and seek prosecution of an individual for a Clause 8 offence.

I can assure noble Lords that, as for any offence, a prosecution for an offence under Clause 8 would be pursued only if the public interest test is met. This is clearly set out in the Crown Prosecution Service’s Code for Crown Prosecutors. The sort of questions that the prosecutor must ask him or herself when considering the public interest test include: “Is prosecution a proportionate response?”, “What is the impact on the community?”, and, “Was the suspect under the age of 18 at the time of the offence?”. I hope this reassures noble Lords that decisions to prosecute for any offence in the Bill will not be taken lightly and a number of factors will be considered.

Interestingly, the national policing lead has advised that the long-term focus of enforcement action will be on those sources of supply which caused the most harm to communities in terms of crime and disorder, or where they are connected with organised crime. Some of these considerations apply equally to Amendment 56, to the extent that it could open up a significant loophole which could be exploited. More to the point, I put it to the noble Baroness, Lady Meacher: do we really want to encourage people to manufacture psychoactive substances in their garden shed, or, indeed, their bath? I suggest not. Production is clearly a critical link in the supply chain and we should not tolerate it on any level, whether it is on an industrial or cottage-industry scale.

The purpose of the Bill is to clamp down on the supply of NPS, not to criminalise young people. A range of civil sanctions is available to law enforcement agencies which offer an alternative route to criminal proceedings as a means of tackling the production and supply of psychoactive substances. The use of these sanctions will enable law enforcement officers to take action swiftly to nip a problem in the bud or to adopt a more proportionate approach to low-level offending. It will be a matter for the relevant law enforcement officer to determine the most appropriate course of action.

I hope that has reassured noble Lords—

Lord Howarth of Newport: I just wonder whether the noble Baroness is not sending a rather confusing signal to people. She is saying, on the one hand, that it must be illegal to import a substance; on the other, she is saying—and I am glad she is, in a way—that the public interest consideration will come into play when decisions about the prosecution are to be made. She is saying that it will be illegal to do it, but she is dropping the very broadest of hints that you are not going to get prosecuted for it. Is that not rather confusing for people?

8.45 pm

Baroness Chisholm of Owlpen: I did not mean to be confusing. People certainly will be prosecuted for it, but as I said, the use of these sanctions will enable law enforcement officers to take action swiftly to nip a

14 July 2015 : Column 541

problem in the bud or to adopt a more proportionate approach to low-level offending. So it will be a matter for the relevant law enforcement officer to determine the most appropriate course of action.

While Border Force will seek to intercept, seize and forfeit any consignment of psychoactive substances coming into the UK, the focus of any criminal justice response will be on cases in which there is evidence of greatest harm. Similar considerations would apply to the enforcement of the production offence. Given this, I trust that the noble Lord feels able to withdraw his amendment.

Lord Paddick: I am very grateful to the Minister for her response. Like the noble Lord, Lord Howarth, I am slightly confused. Clearly, the Bill is aimed at tackling the trade, but whether you buy your psychoactive substance from a website abroad or from a drug dealer on the street, it would seem that the Bill is aimed at tackling one part of the trade but not the other—unless I am confused about that, as I see the Minister and the expressions on people’s faces.

Of course Border Force needs to intercept these packages, which is why we are saying that this should be a defence rather than an exemption or not be an offence in itself. Clearly, if somebody is importing a large quantity and saying that it is a year’s supply, they would have great difficulty in convincing the courts that that defence was available to them.

There are two reasons for raising this issue. First, the Advisory Council on the Misuse of Drugs raised it. In point 5 of its letter, it states:

“The Bill has the potential to both criminalise and apply disproportionate penalties to many otherwise law abiding young people and adults”,

and it specifically mentions importation. Secondly, we wanted to get on the record, which we have achieved, the fact that the public interest test will be applied and that, hopefully, not many young people will end up with a criminal record as a consequence of these measures. On that basis, I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Clause 10: Power to provide for exceptions to offences

Amendment 22

Moved by Lord Bates

22: Clause 10, page 5, line 33, leave out “such” and insert “—

(a) the Advisory Council on the Misuse of Drugs, and

(b) such other”

Amendment 22 agreed.

Amendments 23 and 24 not moved.

Amendment 25

Moved by Baroness Hamwee

25: After Clause 10, insert the following new Clause—

“Control of cannabis

(1) Within six months of the passing of this Act, the Secretary of State shall consult the Advisory Council on the Misuse of Drugs pursuant to the Misuse of Drugs Act 1971 with regard to the use of her powers to make regulations under sections 7, 10, 22 and 31 of that Act—

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(a) to delete from Schedule 1 to the Misuse of Drugs Regulations 2001 the substances listed in subsection (2), and

(b) to add those substances to Schedule 2 to the 2001 Regulations.

(2) The substances referred to in subsection (1) are—

(a) cannabis, and

(b) cannabis resin.”

Baroness Hamwee (LD): My Lords, this takes us back to the control of cannabis for medicinal use. In Committee, there was some interest in, and I would say some sympathy for, the proposal that medicinal use should be permitted through some means or other. I am using those terms extremely loosely but there was certainly recognition of the difficulties and publicly expressed concerns. Very appropriately, concern was also expressed in the Chamber about the need for controlled trials, and a recognition of the difficulties around trials and of the paradox that medicinal herbal cannabis is widely available elsewhere in Europe, either produced in certain countries or imported from them, and in the United States, and that those medicines are much less expensive than Sativex, which is the medicine available—that is quite a wide definition—in this country on limited prescriptions.

I do not want to repeat that debate but I am mindful of the list of conditions we are aware of, and the severity of many of those conditions, which cannabis seems to alleviate—not for everyone, perhaps, but for an awful lot of people, and with very dramatic effects—so I did not feel that I could let the matter rest there. I was also aware that the Labour Front Bench did not feel able to support the amendment at that stage, possibly because of its defective form. The noble Lord, Lord Rosser—as I heard him and as I read in Hansard—was non-committal on the principle of the issue on that occasion. I hope that this evening the Opposition will be able to take the opportunity to indicate their position.

The noble and learned Lord, Lord Mackay, pointed out that there was already a procedure which would allow for cannabis to be moved from Schedule 1 to Schedule 2 to the Misuse of Drugs Regulations 2001 by regulations made under the Misuse of Drugs Act 1971. The amendment places the proposals squarely within the existing provisions of the Misuse of Drugs Act to allow for that change in the regulations to place cannabis among those drugs which may be illegal for recreational use but can be available via prescription. I am proposing the very much more tentative step—a preliminary step, perhaps; I hope so, at any rate—of consultation with the ACMD under the 1971 Act with regard to the use of the Secretary of State’s powers under the regulations to achieve the alteration that I am speaking of with regard to both cannabis and cannabis resin. I beg to move.

Lord Howarth of Newport: My Lords, I hope indeed that, as the amendment proposes, the Government will consult in the relatively near future with the ACMD about the desirability of rescheduling cannabis from Schedule 1 to Schedule 2 to facilitate the use of cannabis-based medications. I draw great encouragement from the fact that the noble Baroness, Lady Hollins, has added her name to the amendment. She is an extremely distinguished psychologist and a very senior figure in

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the BMA. If Ministers are less than impressed by any contribution on scientific or medical subjects that I may be able to make, they should be fully aware that the noble Baroness is in support of the amendment.

Perhaps I may refer again to the pamphlet published under the auspices of the All-Party Parliamentary Group on Drug Policy Reform, Regulating Cannabis for Medical Use in the UK, authored by Professor Val Curran and Mr Frank Warburton. I remind the House that at the outset of that document, the authors state:

“Based on a review of the research literature, the most established uses of medicinal herbal cannabis in places where it is most widely available such as in the Netherlands include: The relief of pain and muscle spasms or cramps associated with multiple sclerosis or spinal cord damage; chronic neuropathic pain (mainly pain associated with the nervous system, e.g. caused by a damaged nerve, phantom pain, facial neuralgia or chronic pain which remains after the recovery from shingles); nausea, loss of appetite, weight loss and debilitation due to cancer or AIDS; nausea and vomiting associated with chemotherapy or radiotherapy used in the treatment of cancer, hepatitis C or HIV infection and AIDS; Gilles de la Tourette syndrome; therapy-resistant glaucoma”.

That is a significant list of conditions and diseases which good scientific evidence indicates are alleviated by cannabis-based medication. Yet we have a state of affairs in this country, in contrast to others, in which such alleviation and medical benefit is hardly available to people. That contrasts strongly with the countries which regulate the medical use of cannabis and cannabis derivatives, including Canada, the Netherlands, Israel, Spain, Uruguay and some 20 or more states within the United States of America. These are all mature societies which have thought deeply about the practicalities of drug control. They have come to a variety of policy conclusions but none of them has taken the decision flippantly or negligently to ensure that medical cannabis can be available in appropriate circumstances for patients who would benefit from it.

The current situation in the UK is that there are numerous people for whom cannabis would incomparably alleviate chronic pain, for example, but who simply cannot get hold of it. That is because of the rigidity of the regulations, the lottery of prescribing—a small number of doctors are willing to prescribe but very many are not—the cost of research and the consequential additional cost of production, and the inflexibility of the licensing system. This case is thoroughly made out in the document from which I have quoted. It surely must be time that the British authorities thought again about this and made moves at least to reconsider, open-mindedly and in a practical and constructive fashion, whether we should at long last reschedule cannabis from Schedule 1 to Schedule 2.

Baroness Meacher: My Lords, we debated this issue at length in Committee and I will therefore speak only very briefly. I support very strongly the amendment tabled by the noble Lord, Lord Paddick, which was spoken to by the noble Baroness, Lady Hamwee.

The Minister is aware that cannabis medication has proved a literal life-saver for children with Dravet syndrome, an extreme form of childhood epilepsy. If cannabis could be available as soon as Dravet syndrome was diagnosed, very severe brain damage caused by literally hundreds of fits every day could be avoided.

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The appalling side-effects of benzodiazepines for tiny children could also be done away with. On the basis of that single syndrome, the value of medicinal cannabis for these tiny children seems sufficient to make the case for cannabis to be shifted from Schedule 1 to Schedule 2.

As we know, Schedule 1 has in it only those drugs that are deemed to have no medicinal value at all. One simply cannot say that any longer of medicinal cannabis. The evidence of the medicinal value of cannabis for a range of other severe, long-term illnesses is now also irrefutable. That is a strong word when research is so difficult to undertake and the research studies have therefore been relatively small, but the evidence from countries across the world is now so strong, even on the basis of these small studies, that I do not think we should be questioning it.

9 pm

We know that for many diagnoses, including multiple sclerosis, different medications suit different patients. I was struck by the noble Lord, Lord Blencathra, maintaining that he does not need medicinal cannabis. Maybe certain people have not tried medicinal cannabis and might benefit greatly from it, but the reality is that different drugs suit different people. We know that there are 30,000 people in this country who are in great pain and go to great lengths to go abroad to get hold of medicinal cannabis, which they say makes all the difference to their quality of life.

The noble Lord, Lord Howarth, referred to the report for the all-party parliamentary group by a research officer, Frank Warburton, and Professor Val Curran. I will not repeat the excerpts that the noble Lord quoted from that report, but it sets out very powerfully not only the number of illnesses that can be treated with the drug but the number of countries that are now using it.

A senior Australian politician came to see me yesterday. He has tabled a Bill to legalise medicinal cannabis in Australia which is expected to become law in the autumn. The Bill apparently has a lot of support in Australia and one of the reasons for that is Dravet syndrome. When I mentioned the case that I shared with Minister, he said, “Oh yes, we have a number of those cases in Australia”. They have made a very big impact. I am very happy to make the Australian Bill, which I am assured will be sent to me, available to the Minister. That could cut a few corners and enable us to make some progress on this incredibly important matter sooner rather than later.

Baroness Hollins (CB): My Lords, I have added my name to this amendment. I refer to my interests in the register but make it clear that I am speaking in a personal capacity. As a doctor, I think this amendment provides quite an elegant solution to the clear need to make cannabis available for medicinal purposes. That is the point of it. Such a law could address a need that has been clearly been there for quite some time and could be used to find a solution to a problem that has found a solution in other countries. I strongly support that. It could facilitate access to cannabis for so many people with long-term conditions such as multiple sclerosis, many of whom might benefit from such provision. I am pleased to support it.

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Lord Tunnicliffe (Lab): My Lords, as many noble Lords have pointed out, we had a wide debate on this issue in Committee. We were unconvinced by the argument at that time. We are unconvinced that an amendment to this Bill is an appropriate vehicle but, as ever, we await the government response with interest.

The Minister of State, Home Office (Lord Bates) (Con): First, I thank the noble Baroness for moving this amendment and giving us the opportunity to return to this issue. I feel we will be returning to it often, as we have considered it often in the past. During the dinner break, I reread the Committee debate and used the time to look at the video that the noble Baroness, Lady Meacher, and the noble Lord, Lord Howarth, pointed me to when we met yesterday. It is a very moving story featuring testimony from a young boy in the United States with epilepsy who was taking medicinal cannabis to very helpful effect. No parent or grandparent would ever want to decry such examples, but of course they are individual stories or cases, and the duty in considering this is to look at the totality of the evidence. That is the duty of the Advisory Council on the Misuse of Drugs, which we have talked about a great deal, and of the Medicines and Healthcare Products Regulatory Agency, which needs to license and approve products for sale and use in the UK.

This amendment brings us back to some familiar territory. In responding to this amendment, I remind noble Lords that cannabis is a controlled drug under the Misuse of Drugs Act 1971 and listed in Schedule 1 to the Misuse of Drugs Regulations 2001. The 1971 Act will continue to regulate the availability of controlled drugs, and Schedule 1 to this Bill specifically excludes drugs controlled under the 1971 Act. The Government are already under a statutory duty under provisions set out in the 1971 Act to consult the Advisory Council on the Misuse of Drugs prior to implementing any changes to the classification of controlled drugs. Provisions in the 1971 Act also enable the advisory council, acting on its own initiative, to keep under review the situation with respect to controlled or dangerous drugs in the UK and to provide advice to the Government. To place a further statutory requirement on the Home Secretary to consult the advisory council in respect of the rescheduling of cannabis, as proposed in this amendment, will in the Government’s view amount to an unnecessary duplication. Moreover, by setting an arbitrary timetable, it would entail an unjustified diversion of the advisory council’s resources from more pressing tasks, particularly as the issue has relatively recently been examined by the council. Indeed, the advisory council has reviewed the evidence on the misuse and harms of cannabis twice in recent years. Its most recent report, published in 2008, confirmed its previous view that,

“the use of cannabis is a significant public health issue. Cannabis can unquestionably cause harm to individuals and society”.

As I highlighted in Committee, no compelling body of evidence has since been put forward to the Government to challenge the advisory council’s view or the Government’s position on cannabis. However, we have listened to the experiences of the noble Baronesses, Lady Hollins and Lady Meacher, and continue to listen very carefully to that evidence, as I am sure that

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the advisory council continues to do as well. Of course, we continue to monitor the evidence, but it is the Government’s view that the available evidence does not warrant a specific commission of the advisory council at this time. This position does not prevent the advisory council from reviewing the available evidence and providing further advice to Government on its own volition, if it considers that there is enough scientific evidence to warrant the legislative change proposed in the amendment.