My Lords, the contents of Amendment 1 are reflected in Amendment 3. I am grateful to my noble friend Lord Rees, the noble Lords, Lord Norton and Lord Howarth, and my noble friend, if I may call her that, Lady Hamwee, for putting their names to one or other of those amendments. My noble friend Lord Patel also wanted to add his name to one or other of the amendments but unfortunately the lists were full. I simply want to make the point about the breadth of support for the amendments.
The purpose of the amendments is to limit the scope of a blanket ban to synthetic psychoactive substances. That raises two issues: should we seek to limit the scope of the blanket ban at all; and, if we should, is the word “synthetic” the right one? I will not repeat what I or others said in Committee, but will refer to events since—there have been a number.
On the first point, since Committee, overwhelming support has emerged for limiting the scope of the blanket ban. As the Minister knows, the Government’s Advisory Council on the Misuse of Drugs makes very clear in a letter to the Home Secretary that it cautions against a blanket ban on all psychoactive substances. The ACMD points out:
“It is almost impossible to list all possible desirable exemptions under the Bill. As drafted, the Bill may now include substances that are benign or even helpful to people including evidence-based herbal remedies that are not included on the current exemption list”.
The Minister will also be aware of the letter to the Prime Minister published in the Times from the former Archbishop of Canterbury—one cannot go a lot higher than that—among other eminent academics and ethicists. They say:
“It is not possible to legislate against all psychoactive agents without criminalising the sale of harmless, everyday products that produce changes in mood”.
I very much hope that the Home Secretary will heed the advice of those many experts.
The second point raised by the amendment is why we use the term “synthetic” to define the ban on psychoactive substances. I believe I am right in saying that the Conservative manifesto referred to a ban on
legal highs. In tabling the amendment, I assure the House that we seek to respect the Government’s manifesto commitment. However, the term “legal high” is, I am told, not appropriate for legislation. There is consensus among the experts that the target of the Bill should indeed be legal highs. The ACMD uses the word “novel”, and I shall quote a short paragraph from the ACMD letter on the issue. It states:
“The ACMD would support a ‘blanket ban’ on Novel Psychoactive Substances, but cautions against a blanket ban on all psychoactive substances”.
I have very good reason to believe that the ACMD would be entirely happy with the term “synthetic psychoactive substances” in place of the word “novel” to define a legal high. For me, that is very important.
At a meeting with a top professor of neuropsychopharmacology and a QC, we discussed the relative merits of the words “novel”, “new” and “synthetic” in this context. It was agreed that neither the term “novel” nor the term “new” would be recognised in a court of law. We have many lawyers here, and I am sure they will tell me if my legal adviser is wrong or right. Mr Fortson QC was very clear on this point. He said that the best term to define legal highs and thus to honour the Conservative manifesto commitment would be “synthetic psychoactive substances”. The following sets out what we agreed as drafted by one of those experts:
“We recommend that the target of the Bill be amended to define the banned substances as synthetic psychoactive substances. This will at a stroke eliminate the requirement for many innocuous psychoactive botanicals to be exempted, eg, perfumes, incense, herbal remedies”.
I believe that there could be many hundreds, perhaps thousands more. In particular, it will cover all current and future synthetic cannabis analogues, which are proving such a huge problem in prisons and elsewhere.
The only botanicals currently used recreationally that might currently pose any concern—I emphasise “any”—are kratom and salvia. However, they are not reported to lead to deaths or public disorder and, if they became more of a concern, they could readily be controlled under the Misuse of Drugs Act 1971. The point about botanical substances is that it takes years to create a new one. The Bill is designed to control synthetic substances, a new one of which can be created in a matter of minutes. The need is to find a definition of banned substances that is proportionate, ensuring that the Government avoid banning all sorts of harmless products and cause untold problems for manufacturers, shops and consumers, while spreading the blanket ban widely enough to catch all harmful synthetic substances—that is, those substances not controlled by the Misuse of Drugs Act.
On this point, I should notify Ministers and the House that I plan to table a tidying-up amendment at Third Reading to bring all synthetic psychoactive substances currently controlled under the Misuse of Drugs Act under the control of this legislation. It makes no sense to have hundreds of synthetic psychoactive substances controlled under one Act, while any new psychoactive substance would be controlled under different legislation —that is, this Bill. I hope very much that that amendment at Third Reading will not be controversial.
3.15 pm
I turn to the issue of harm, addressed in Amendments 2, 6 and 7. I say at the outset that the wording of these probing amendments could be improved. For me, the main point of these amendments is to focus the minds of Ministers and your Lordships on what many have described as an extraordinary feature of the Psychoactive Substances Bill: the elimination altogether of the concept of harm from the system of control of supply, importation and production of psychoactive substances. The Government’s hand-picked expert panel recommended the inclusion of the concept of harm and a safety clause whereby substances of low or no harm would be excluded from the Bill. It is a matter of concern that this key recommendation is not reflected in the Bill—though I must confess that I have a feeling I know why, and it is a perfectly reasonable reason.
The Government’s Advisory Council on the Misuse of Drugs draws attention in its letter to the Home Secretary to the view of the expert panel concerning the need to include the concept of harm in the policy framework. The ACMD points out quite rightly that the suppliers of benign or beneficial substances could be prosecuted under the Bill. Is that what the Government really intend? The letter in the Times from senior scientists, academics and ethicists also expressed concern that:
“It is not possible to legislate against all psychoactive agents without criminalising the sale of harmless, everyday products that produce changes in mood”.
This amendment seeks only to bring the boundaries of the Psychoactive Substances Bill into line with the Misuse of Drugs Act 1971 in determining a level of harm below which the supply, import and distribution of a substance would not be a criminal offence. As some in this House know, I am a critic of the Misuse of Drugs Act on many grounds, but it does recognise that only harmful drugs should be controlled.
I understand that the Government want to avoid delays in banning dangerous substances while their level of harm is assessed, and this is a matter with which many of us have considerable sympathy. The issue of setting the level of harm as a floor below which a substance would not fall within the scope of the legislation is complex. The European Union still has not implemented its excellent regulation on psychoactive substances, purely because it is still working on defining what that threshold of harm should be. All are agreed that this is an important matter and a solution needs to be found, but it will certainly not be straightforward to find it. Therefore, I seek an assurance from the Minister that the Government will work with the ACMD and others to find that solution.
To end my remarks, I return to the first matter addressed in Amendments 1 and 3: the use of “synthetic” to define psychoactive substances controlled under this legislation. Can the Minister assure the House that the Government plan to work with the ACMD to find the right solution to the definition issue? Does he agree that, as it stands, the very wide definition in the Psychoactive Substances Bill is not satisfactory? Will the Government either work with the ACMD to agree the word “synthetic” or, if there is a better term to define legal highs, use that? I beg to move.