My Lords, I thank my noble friend for that intervention and hope to respond to it, at least in part, as I progress through the points I am making.
Amendment 7 would delete the definition in the Bill and would hence create the opposite effect from the one that we wish to pursue. For those reasons, in general we oppose these amendments. But—and it is an important but—we have become increasingly concerned with the operation of the Bill. What will happen? The concern that was building up and which came out on the first day in Committee was about how it will work operationally. It is of particular concern because the Bill refers specifically to the “balance of probabilities” and then, in other places, ends up with criminal sanctions. That is starting to feel very wrong. We challenged the Minister on this and he promised to write to me to provide reassurances about the operational aspects and the whole issue of proving whether something was psychoactive. I intend to refer to the letter that I got from the Minister. I thank him for the letter and
I thank him and the team for making sure that it was copied to anybody who has spoken in the event—so anybody who has spoken in the debate so far should have a copy of the letter.
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The letter touches on the whole problem of what an enforcing officer does, how he handles things and how he comes to a conclusion, and so on—and it is not that helpful. But perhaps that is because being a policeman, customs officer or whatever is a difficult task; it is about decisions of degree. We have a concern about that, but I think that the Government in the letter commit to doing the best job that they can and to use the best advice, and I do not think that we can take that any further. The really key issue is about when someone will go to prison or be fined. What will be the process and the burden?
On the first page of the letter, the Government assure us:
“We are … committed to ensuring that there are mechanisms in place to determine the psychoactivity of seized substances in a timely and effective way”.
That seems to be for the efficient operation of the Bill and to cover the concerns that the advisory committee has about the provability of psychoactivity—it is a commitment from the Government to do something about it. On the next page of the letter, they set out the mechanisms that are being set up and offer three views of how psychoactivity might be proved,
“using existing data … identifying a substance’s chemical structure … and … in vitro neurochemical profiling”.
They seem persuadable. But I now go on to quote the letter directly, because I would like a response from the Minister. In the middle of that page, it says:
“Ordinarily, it can take between 9-12 months for a drug to be brought under the control of the Misuse of Drugs Act 1971, following the advisory and parliamentary process. Until a drug is listed in Schedule 2 to the 1971 Act, no offence can be committed under the Act in relation to that substance”.
Since the essence of the letter is that analogous procedures are going to be used for the proof that a substance is psychoactive, how long do the Government envisage the new processes will take, particularly the parliamentary processes?
The next paragraph of the letter is crucial in securing that appropriate level of proof before somebody is either fined or committed to prison for an offence under the legislation. It says:
“By contrast, under the Bill, substances are not required to be tested, assessed and/or then listed in order for enforcement officers to make use of the enforcement powers conferred by the Bill. As described above, the Bill gives enforcement officers the tools to be able to search for and seize any substance they reasonably believe to be psychoactive. The same ‘reasonably believes’ test applies to the issue of a prohibition notice or premises notice and applications for prohibition orders and premises orders are determined on the basis of the balance of probabilities”.
However—that is my however; it is not in the letter—the key sentence is the one that follows, which says:
“In the case of a prosecution for an offence under clauses 4 to 8 or (depending on the nature of the failure to comply with an order) 25 of the Bill, it will be for the prosecuting authorities to establish beyond reasonable doubt the psychoactivity of the substance in the order to secure a conviction”.
In other words, as I read it, the prosecuting authorities must meet the criminal test of evidence before an individual can go to prison or be fined for an offence under the Bill. I am concerned by the words in parenthesis,
“depending on the nature of the failure to comply with an order”,
and I would like the Minister to assure me that it means the general point that I have made. The letter goes on to say that various mechanisms will be set up, and I hope it implies that there are going to be adequate resources.
Given an affirmation by the Minister that I have accurately quoted his letter, some response on the time issue and an assurance that nobody will be sent to prison or fined unless the psychoactivity of the substance has been proved by the criminal test of beyond reasonable doubt, we are content with the definition in the Bill and will not be supporting any of the amendments.