10.The Prisons (Substance Testing) Bill is a Private Member’s Bill sponsored by Baroness Pidding. It was passed by the House of Commons on 12 March 2021 and had its first reading in the House of Lords on the same day. Its second reading is due to take place on 16 April 2021.
11.The purpose of the Bill, according to the Explanatory Notes accompanying the Bill, is “to improve the capability of prisons in England and Wales to test for the use of illicit substances by prisoners [in order to] help staff in Her Majesty’s Prison and Probation Service and other agencies to understand the full extent and nature of substance misuse in prisons, and to take appropriate action to prevent it”.
12.The Ministry of Justice has provided a Delegated Powers Memorandum (“the Memorandum”) which states that the Bill, “expands the existing power to conduct mandatory prisoner drug testing within prisons via urine samples, so that prisoners can be tested for a broader and more comprehensive range of substances”.
13.We draw the attention of the House to changes made by the Bill which affect an existing delegated power to specify substances for which testing may be conducted.
14.The Prison Service and the Youth Custody Service have power under the Prison Act 1952 (“the Act”)to require a prisoner to provide a sample of urine for the purpose of testing for—
15.“Specified drugs” means those listed in the Prison Rules 1999 and the Young Offender Institution Rules 2000 (“the prison rules”). The prison rules are made by the Secretary of State by negative procedure statutory instrument.
16.Testing is backed up by disciplinary offences under the prison rules: it is an offence against discipline to test positive for a “controlled drug” or a “specified drug”or to refuse to provide a sample for testing.
17.The Explanatory Notes describe how, in recent years, drugs have been developed with a chemical composition that can be easily changed by manufacturers to create new variants which are not covered by the testing regime until such time as a statutory instrument can be made to add each new variant to the list of “specified drugs”.
18.To address this problem, clause 1 replaces the existing power to test for “controlled drugs” and “specified drugs” with power to test for “controlled drugs, pharmacy medicines, prescription only medicines, psychoactive substances and specified substances”.
19.“Pharmacy medicine”, “prescription only medicine” and “psychoactive substance” are sufficiently broadly defined to allow testing for new variants of drugs without the need to add each new variant to the list of “specified drugs” by statutory instrument.
20.However, power to specify substances by statutory instrument for the purposes of testing is to be retained. The Memorandum explains that this is because of the possibility that prisoners may in the future misuse substances which are neither controlled drugs, pharmacy medicines, prescription only medicines nor psychoactive substances.
21.The power will allow “any substance or product” to be specified for the purposes of testing. The Memorandum does not explain the intended scope of what is, on the face of it, a broad power, other than to say that there is no substantive difference between this power and the existing power to list “specified drugs” by statutory instrument.
22.However, if that is the case, it is not clear why clause 1 of the Bill makes a number of changes to the language in the statutory power to test - small in scale but potentially significant in effect–so that references to testing for “drugs” are to become instead references to testing for the broader “substances”.
23.On the face of it, these changes suggest an intention to broaden the scope of the power to test and, by extension, the delegated power to specify substances for which prisoners can be tested but the Memorandum provides no explanation.
24.We recommend that the House press the Bill’s Sponsor to fully explain the scope of the delegated power to specify “any substance or product” for testing (in particular, what sort of substances it is intended that the power could be used to specify) and what the justification is for this given the breadth of the new powers to test for pharmacy medicines, prescription only medicines and psychoactive substances.
25.The Bill appears to provide for a surprising de-coupling of the power to test for drugs from disciplinary offences relating to drugs under the prison rules. As explained above, the Act currently allows testing for (a) any “controlled drug” and (b) any drug specified under the prison rules and it is an offence against discipline under the prison rules to test positive for a drug which falls within either of those two categories.
26.However, clause 2of the Bill makes amendments to the prison rules which appear to have the effect that, although it will continue to be a disciplinary offence to test positive for a “controlled drug”—
The Memorandum provides no explanation for this.
27.We recommend that the House press the Bill’s Sponsor to explain and justify retaining the delegated power to specify substances for which prisoners can be required to be tested if there is to be no corresponding provision making it a disciplinary offence under the prison rules to test positive for any such substance.
5 Ministry of Justice, Delegated Powers Memorandum, 15 March 2021:
6 Para 2 of the Memorandum.
7 Section 16A of that Act.
8 Those controlled under the Misuse of Drugs Act 1971.
9 Schedule 2 to the Prison Rules 1999 (“the 1999 Rules”) and Schedule 2 to the Young Offender Institution Rules 2000 (“the 2000 Rules”).
10 Under section 47 of the Act. The power to list “specified drugs” is in section 47(3A).
11 Rule 51(9) of the 1999 Rules and rule 55(1) of the 2000 Rules.
12 Rule 51(22) and (23) of the 1999 Rules and rule 55(25) and (26) of the 2000 Rules (disobeying a lawful order and disobeying or failing to comply with a rule or regulation).
13 Clause 1(2), (3) and (5)(a) and (d).
14 Clause 2(3) and (4).