Welfare Reform Bill

We move on to the amendments to Clause 9, which raise significant issues. I mention, simply for the record, that Amendment 96 is purely consequential on Amendment 95. I shall also speak to Amendments 97, 98, 105, 106, 113 and 114, which are in my name. If noble Lords will forgive me, I will address clause stand part before my individual amendments. I am grateful, by the way, to the Royal College of Psychiatrists, DrugScope, Release, the BMA and the National Association of Probation Officers, which have provided valuable briefing for the debate. I am sure that we all share the same objectives, and the Government, in proposing Clause 9, are no exception. We want a reduction in the number of people whose lives are blighted by their dependence on drugs. We want the system to address any difficulties experienced by that group due to their illiteracy, lack of numeracy, and often non-existent accommodation and fractured relationships. Eventually, efforts directed at those problems will pave the way for people addicted to drugs to find their way into work. There is no short cut. The point that I—and, I believe, others—wish to make is that Clause 9, based as it is on coercion and compulsion, will not work. Perhaps the best evidence for that assertion is the fact that the Government recently abandoned a similar regime for offenders on community sentences. In pilot areas, claimants face sanctions for failing to comply with a court order under those sentences. The Government have concluded that that approach has been an expensive failure, resulting in only a 1.8 per cent improvement in compliance and costing £5.60 in public funds for every £1 saved. I am sure that those figures are familiar to the Minister. The conclusion is that sanctions could deepen poverty, entrench marginalisation, increase crime and put extra pressure on the finances of families supporting people with drug problems; they have a difficult job on their hands. I would be grateful for the Minister’s comments on the Government’s experience of the programme that I have referred to. Another key point is that there is no additional investment proposed for the treatment envisaged by Clause 9. The impact statement for the Bill states that additional costs are likely to be incurred by the Department of Health from the extra places in drug treatment. I understand that the DWP assumes that these resources will become available through what it terms "reprioritisation". As the chairman of a mental health trust, I suggest that this is more than a little optimistic, particularly in the coming decade when we will all be cutting back on the services that we deliver. Believe me, the primary care trusts do not give any kind of priority to people with drug addictions. We find it very hard to persuade them to give us money to set up even those limited services that we provide. The probation service probably has a better understanding of this needy group than anyone else. It currently supervises over 240,000 people, at least two-thirds of whom are drug-dependent; 84 per cent of whom have literacy problems and the literacy level of an 11 year-old or lower; and the vast majority of whom are unemployable. NAPO makes the point that many other drug users have escaped the notice of the criminal justice system, meaning that potentially tens of thousands of people could be subject to the sanctions regime. Apart from anything else, there will not be the resources in place to deal with the number of people involved. All these comments apply to drug-dependent people. The number of claimants caught up in the sanctions system could multiply many times over if those with a propensity to drug misuse were to be included. That brings me to Amendment 95. The point here is that the Government propose to impose requirements on claimants for jobseeker’s allowance not only if they are dependent on a drug, but if they have a propensity to misuse any drug. The second proviso is that the dependency or propensity is a factor affecting their prospects of obtaining or remaining in work. The term "propensity to misuse", as I understand it, lacks a precise meaning and is amenable to a very wide interpretation. It could, for example, be argued that the use of any illegal drug is a form of misuse, or certainly a propensity to misuse. How is a personal adviser to judge whether a claimant has a propensity to misuse a drug? Even more difficult will be the judgment of whether the propensity is affecting their prospects of getting and holding a job. Apart from the insurmountable problems for the personal advisers who have to make these judgments, their subjective judgments would leave large numbers of claimants very vulnerable to benefit sanctions and the fear of them. Do the Government really want to do that? When you consider the number of unemployed people who take drugs—mainly cannabis—from time to time, or perhaps quite regularly, the risk of widespread destitution if these sanctions really were followed through could be considerable, particularly while unemployment remains very high. I know and have known people who, if I am perfectly honest, use or have used cannabis, in particular, very regularly, and yet they hold down a perfectly good job. It is not as straightforward as "drugs—cannot work; no drugs—can work". It is not like that and therefore these judgments will be extremely difficult to make. I do not believe that rational and fair decisions could ever be made on the basis of Clause 9(1) as it stands. Amendment 97 tackles head-on the fact that drug use is unlawful in this country, as in most others, and yet the DWP in this Bill recognises that people who misuse drugs are not villains for using those drugs and should not be treated as such. This is very interesting to me. If they commit crimes, that is a different matter. Rather, they should be treated as people with a mental health problem, who need medical or psychological treatment. In that respect, I wholeheartedly support the intentions of the DWP in this clause. It is relevant to note that the head of the UN Office on Drugs and Crime, in his report that came out only yesterday, admitted for the very first time that drug use should be treated more as an illness than a crime. This is of momentous importance across the world. For years, the UN has demanded criminalisation. Finally, we have a statement that says that it has got it wrong. Drug users live in a world where they can be charged at any time simply for possessing and using drugs. This is why Amendment 97 is so important. It seeks to ensure that the questioning of jobseeker’s allowance claimants about whether they are dependent on, or have a propensity to misuse, a drug is done in a fair and reasonable way. That does not sound revolutionary. It also requires that such interviews are conducted at a time and place which is appropriate, and seeks to ensure that claimants have the support they are likely to need if they are to disclose the use of drugs. Very importantly, the amendment also seeks to have detailed in regulations the qualifications and competencies of persons who will be able to impose a requirement to answer questions and to conduct interviews. The Bill does not outline at what point the requirement to answer questions is engaged. It could potentially be imposed on all claimants; in fact, it might be argued that it should. I do not want any of it, but why ask one claimant rather than another? Unlike the other provisions contained within Schedule 3, there is no requirement of reasonable suspicion. Perhaps the Minister can explain why not. A coerced declaration of drug use in these circumstances would constitute a potential breach of Article 8 of the European Convention on Human Rights. It will be reliant upon the threat of benefit sanctions and therefore the disclosure would not be freely given. Given the criminalising context, people with drug problems are understandably fearful of statutory agencies and may feel shame about their drug use and its consequences. Such disclosure requires a level of trust between the worker and the claimant. It would be grossly unfair to impose a benefits sanction on someone for failing to disclose a drug problem in an inappropriate and unsupportive environment. It is essential that such interviews are conducted by staff with the skill and experience to handle disclosures sensitively and that appropriate support is available. I hope the Minister can give the Committee some assurances on these matters. Amendment 98 seeks to remove from the Bill the power of the Secretary of State for Work and Pensions to require someone to take part in one or more drug tests for the purposes of ascertaining whether there is, or has been, a drug in the person’s body. Drug testing should not be incorporated into the benefits system. A positive drug test does not distinguish between problematic and recreational use and is a potential breach of Article 8—the right to privacy—of the ECHR. Article 8 provides a right to refuse treatment. Compulsory testing is certainly an infringement of civil liberties and involves important moral and ethical considerations. Further, a test will not help to establish whether any drug use is a factor in gaining work or employment or whether the person will benefit from drug treatment. There are technical arguments, too. Drug testing is not entirely reliable. For example, someone using over-the-counter painkillers containing codeine could test positive for opiates. There are others of which I am sure the Minister is aware. Finally on Amendment 98, intrusive drug tests without the consent of the claimant will affect the relationship with the treatment service. I have not been able to find out who will undertake the drug testing under the Bill as it stands and I would be grateful if the noble Lord could clarify that point. Who will be undertaking the drug testing? More particularly, does he accept that such testing does not belong in a Welfare Reform Bill? Turning briefly to Amendments 105 and 113, as the Bill stands a JSA or ESA claimant must submit to treatment by or under the direction of a person having the necessary qualifications or experience. The BMA is extremely concerned about these clauses. The amendments would require instead that the JSA claimant, under Amendment 105, and the ESA claimant, under Amendment 113, must attend an initial assessment for treatment by or under the direction of a person having the necessary qualifications or experience. Thus treatment itself would not be compulsory if the amendments were accepted by the Government. I discussed these amendments with Dr Crawford, our leading consultant psychiatrist on substance misuse in the East London NHS Foundation Trust. Her comments are worth quoting. She said: ""Addiction is a disease that is chronic and relapsing; hence there may still be reoffending. But there are many other health and social benefits of a good therapeutic intervention. If someone is not yet able to manage with the demands of the treatment system, often due to their chaotic and abusive past, then removing the low level of benefits income will lead to further community harm. People cannot always stop their substance misuse, even if they want to"." Dr Crawford takes the view, which I share, that linking drug treatment to the maintenance of benefits is unethical. However, she would welcome a boost to the benefits and employment system to engage better with this particularly socially excluded group. The requirement to attend an initial assessment for treatment would be ethical, and begins to engage drug users with potentially helpful therapeutic services. They could discover opportunities to tackle their addiction and other problems, of which they may not have been aware. I know that those who do not want Clause 9 at all might challenge even that. I have had discussions with Dr Crawford and I think she feels that real efforts to draw some of these very excluded individuals towards a treatment regime could be very helpful, but she is very worried about the sense of coercion and the fear that these people have in the context of the criminalisation of drug use. That is the big problem with the whole of Clause 9. It is set in a context that is the fault not of the DWP but of the UN, if I may say so, but our Government have pursued the UN line, which simply makes this whole thing completely unacceptable. I hope the Minister will recognise that the views that are expressed here are rooted in years of direct experience of working with people who misuse drugs. I very much agree with the noble Lord, Lord Ramsbotham, that we need to listen to the people who actually work on the ground with these things. We are simply the deliverers of the message. The great challenges are to engage this group of patients and to keep them engaged to enable them to deal with their three huge challenges: drug misuse, illiteracy and a chaotic lifestyle. Compulsion, and compulsory treatment, has no place in this journey. Noble Lords will be pleased to hear that I come to my last pair of amendments, Amendments 106 and 114, which can be dealt with together and briefly. They would ensure that no JSA or ESA claimant would be referred for treatment, even on the voluntary basis set out in our previous amendments, unless the appropriate practitioner had determined that the person is susceptible to treatment and consents to it. Amendment 106 refers to JSA claimants, and Amendment 114 refers to ESA claimants. The arguments of the drugs and human rights organisation Release merit inclusion on the record and deserve the Minister’s serious attention. It rightly argues that forced treatment as a condition of benefit introduces a worrying new aspect to UK law. Once this precedent has been set, it could be extended to claimants needing to lose weight or give up smoking, for example. There are concerns that there has been no assessment of the effectiveness of current regimes. The only study of the effectiveness of drug testing and treatment orders was conducted in 2003 by the Home Office, which found that 80 per cent of offenders who had been subject to a DTO had been reconvicted within two years of the start of the order. Release points out that no research has been carried out on drug rehabilitation requirements, despite the fact that recent figures showed an investment of £398 million for 2007-08. The application of further compulsion without any evidence that it will be effective gives rise to serious ethical questions. Those with direct clinical experience of these issues say that treatment for problem drug users will work only when it is appropriate and timely for the individual concerned. Even then, relapse is frequent. It is far from clear how the DWP would deal with relapse in this context. Release takes the view, based on its experience of problem drug users, that many would end up simply not engaging with the benefit system at all, living in even greater poverty and exclusion, and increasing criminal activity to make ends meet. I hope that I have adequately represented the views of the many organisations and individuals who share my concern that the coercive regime for problem drug users that is set out in Clause 9 will be dangerous and counterproductive. I beg to move.