My Lords, it is remarkable that the international community, having been increasingly aware of and alarmed by the dangers of new psychoactive substances, has none the less not so far succeeded in establishing a definition that is watertight in legal terms and available to the Government to use in their legislation as they seek to fulfil their manifesto pledge. The expert panel, on page 38 of its report, advised that the definitions in use in legislation would need to be robust. This group of amendments seeks to specify more closely the generic problem that we are seeking to address through this legislation.
In seeking to tighten and, in a sense, limit the scope of the Bill in this way, let me not give the impression—I know that other noble Lords who have supported
these amendments would not want the impression to be given—that we in any way minimise the dangers from new psychoactive substances. This is a serious and challenging social problem.
3.30 pm
Some of these new psychoactive substances have shown themselves to be capable of inducing paranoia, psychosis, seizure and, indeed, death. We have very limited testing facilities. The risks of taking an unidentified powder on its own, let alone in combination with other such drugs or alcohol, are very great. Some new psychoactive substances are more dangerous than the controlled substances that they seek to mimic. There is a very serious problem and we are absolutely at one with the Government in their determination to find effective ways to address this problem.
However, it seems to me that the term “psychoactive substance”, as deployed in the Bill, qualified only by the exemptions set out in Schedule 1, is too loose and too imprecise. Noble Lords who are lawyers and experienced judges will know far better than me what difficulties such looseness of definition might present to the courts. The noble Lord, Lord Paddick, with his experience as a senior police officer, will also appreciate the difficulty of looseness of definition when it comes to police officers performing the duties laid down for them in the Bill. It is very important that we try to light upon a form of words that expresses more precisely the nature of the drugs and the danger with which we are seeking to deal.
Therefore, I was encouraged by what the Home Secretary said in her letter of 11 July. Perhaps I may say how much, I am sure, all noble Lords who participate in these debates appreciate the rapidity and the comprehensiveness with which the Home Secretary has responded to the letter dated 2 July that she received from Professor Les Iversen, the chairman of the Advisory Council on the Misuse of Drugs. Her letter is very helpful in a great many respects. She says that she welcomes the offer of the ACMD to discuss this issue with officials and that:
“I propose that such discussions might usefully explore options for strengthening the definition of a psychoactive substance”.
I take it that we are all agreed that further work is needed to get the wording of this legislation right so that it is appropriately targeted.
Legislation in other countries, from which the Government have borrowed—the Irish, Polish and Romanian legislation—all omit the language of harm, which has been introduced, or I might say would be reintroduced, from the language of the Misuse of Drugs Act 1971 in Amendment 2 and, I think, Amendments 6 and 7. The Irish and Polish laws state that the psychoactive effect must be “significant” for the offences to come into play, which is a kind of qualification. The Romanian legislation goes further and is much more akin to the New Zealand legislation, which the Government have rejected. Under the Romanian legislation, a supplier or producer is required to submit a psychoactive risk assessment and to describe the nature of the substance in question.
There are difficulties with the concept of harm. The Misuse of Drugs Act 1971—chapter 38—established the remit of the advisory council. In wording that is
used in some of these amendments, the advisory council is enjoined to take into account questions of harm. But it seems to me that there cannot be a simple, objective view taken of harm. The harm that a drug may cause depends on the context. It depends on the dosage, on the purity of the particular batch and on the person who consumes it, who may be an experienced, recreational drug user or perhaps a vulnerable and ignorant teenager. It depends on a whole range of social factors that probably would need to be taken into account. Even the original legislation probably creates a task that is singularly difficult for the ACMD to fulfil. No doubt that is one of the considerations that will be dwelt upon in the conversations between the ACMD and Home Office officials.
The expert committee also warned that closer thought needed to be given to possible unintended consequences of the loose and generalised term “psychoactive substances” used in the Bill. We do not want to criminalise priests. The more vigorously the priest swings the censer, the more incense is let loose into the body of the church. As I understand it, these days priests can no longer enjoy the benefit of clergy, so we have to be very careful that we do not unintentionally criminalise either priests or florists because flowers have psychoactive effects. I remain concerned about Lady Bates, and the Minister, as, when he presents her with a bouquet of flowers, both he and the florist may be in breach of the law. He shakes his head but he has not yet told us how the language of the Bill protects him in such a situation. Of course, the enforcement authorities are advised to take a proportionate response so they may let him off lightly, but I would not be happy to rely upon that alone.
The Home Office’s own annual review declares that the Government’s policy in the European Union is to,
“work to ensure proportionate and effective EU level action on NPS”—
that is, new psychoactive substances. But then the Government rejected the EU’s proposed legislation and produced this legislation which, as drafted, is neither proportionate or, it seems to me, likely to be effective because it imposes too much of a blanket ban, and we know that life does not work like that. If you simply say, “Here’s a social evil, we’re going to ban it. We want it to go away”, however much the police and other authorities attempt to prioritise enforcement of the ban amid all their other very challenging and difficult responsibilities, it seems to me highly unlikely that people will give up their drug-taking practices.
Given those considerations and given the warning of the ACMD that,
“The psychoactivity of a substance cannot be unequivocally proven”,
we have to tread very carefully. I believe that the term “synthetic” proposed in Amendments 1 and 3 is appropriate because the drugs that we are trying to deal with—the so-called new psychoactive substances—are now being routinely and rapidly synthesised, principally in China but also in India. I understand that the Minister, on one of his admirable sponsored walks, is about to do a walking tour of China. It may well be that in the course of his perambulations he will look in on one or two of these laboratories. Following his
earlier fact-finding mission incognito to Glastonbury, he ought to pursue his investigations that little bit further. Anyway, we must deal with that. These are new drugs, synthesised in rogue laboratories, principally in China. If we use the term “synthetic”, we catch what we need to catch.
I understand that naturally derived substances have over the years since 1971 been pretty comprehensively reviewed by the advisory council. One or two may escape the more limited, tighter definition of “synthetic psychoactive substances”, and nitrous oxide, which the Government are anxious to control, may be one of them. However, if they are perturbed about that, I think that they already have means to hand under the 1971 legislation to deal with the problem of nitrous oxide. Salvia was mentioned, as were one or two other botanical substances. They can all be dealt with under the powers that already exist. I am very pleased that the Home Secretary, having regrettably sidelined the ACMD in the earlier phase of preparation of this legislation, is now keen to consult it, allow it to advise her officials and to bring it on board so that its expertise can be brought to bear.
I hope that, by the time this Bill reaches the other place, the Minister and his colleagues will find language which delimits and denotes much more precisely and exactly the drugs which are the evil that we are trying to protect our young people’s health and lives from.