My Lords, I thank the noble Baroness, Lady Meacher, for giving us the opportunity for this debate on Report. We have had a busy period between Committee finishing and Report commencing. It has been a very productive time. We have had many meetings, which were promised in Committee, about different aspects. We have had a rapid flow—a flood, even—of correspondence, which has been two-way, as it has been with the ACMD as well. This is, in a sense, how the process of legislation should work: Committee is a meaningful process, the Government reflect on it and then come to Report having considered further.
The noble Baroness, Lady Meacher, speaks with great authority and insight on these issues. Although there are a number of points which I need to address in my speech, I want to make sure that, as in an examination essay, when you try to answer the question that is put early on, just in case the examiner is not quite following the depth of your analysis, I put it on record that we are not ruling out the term “synthetic”. We are not saying that it is not adequate; it is within the complex of debate. The ACMD did not offer an opinion on “synthetic”. It suggested “novel” and we responded with “new”. I will come back to this, but I do not want to let the moment go by without saying that this is a genuine process by which we want to consider all the options and weigh the very signification contributions from Members of this House. We have benefited from the legal expertise that the noble and learned Lord, Lord Hope, and my noble and learned friend Lord Mackay offered us on how this may be viewed. This is a significant matter which we will want to reflect upon very carefully as we go through.
I was also grateful to the noble Lord, Lord Ramsbotham, for his intervention; he mentioned Her Majesty’s Inspectorate of Prisons, which has talked about the seriousness of this problem in the prison estate. It has been a growing problem. That observation came after Committee.
We also had the intervention from the Prisons and Probation Ombudsman, who reflected on the number of deaths in custody that had been due to this. He had examined 19 fatalities in prison between April 2012 and September 2014 where the inmate was known or strongly suspected to have been taking drugs, and this
was a relevant factor in their death. We will be coming to responses to that in later groups of amendments, but I appreciate that point being made.
If the House will bear with me, I shall put some remarks on the record while I seek to address the points made particularly by the noble Lord, Lord Tunnicliffe, and mentioned by other noble Lords during the debate. The Government take seriously the views of the advisory council. The noble Lord, Lord Kirkwood, asked if there was a difference here. There should be a sort of tension between anyone who has a statutory duty to advise and, whoever are the Government of the day, I am sure that that tension is there.
We recognise that there were members of the ACMD who were on the expert panel. The ACMD advised particularly on the science while the expert panel, which was set up and asked to undertake the particular report by Norman Baker under the previous coalition Government—I am not going down that route—included people from a wider group, including law enforcement officers and various drug treatment organisations. They were the ones who came forward with a recommendation for a ban. Again, though, I want to make it clear that any reading of the report would show that it was hardly obvious what needed to happen; it was not a no-brainer. The expert panel wrestled with the question; they saw a number of disadvantages and advantages, but on balance they came down on the side of a ban.
As the House is all too aware, the Bill is designed to capture substances supplied for human consumption that have psychoactive effects. Its aim is to cover substances that are not currently controlled under the Misuse of Drugs Act 1971 but, as with any drug when misused, carry risks. The definition has been deliberately drawn widely, as the noble Lord, Lord Tunnicliffe, said, and is a necessary move away from the approach taken in the Misuse of Drugs Act. Potentially, this is the equivalent of the “Whac-A-Mole” problem—I am desperately in search of a more elegant legal term—where a substance is banned under a temporary banning order, but then up it pops again a few days later with a slightly changed molecule to get around the legislation. It is not accidental that we have drawn this widely; it was deliberately done to recognise that there is a particular problem here.
As my noble and learned friend Lord Mackay pointed out, this is a dynamic, fast-moving and fast-changing market. The market in psychoactive substances has dramatically changed over the last few years and shows no signs of abating. In fact it seems to be getting worse: we had an excellent session with Public Health England, to which all interested Peers were invited. One of the points that that body made was that a lot of clinics say that the ease of access to these drugs is fuelling a particular problem. The noble Lord, Lord Kirkwood, and others, such as the right reverend Prelate the Bishop of Portsmouth, also had the opportunity to meet a children’s organisation. We will come back to that later, but that organisation talked about how these so-called legal highs are used as part of the grooming process for vulnerable young people. These are very serious problems.
Amendments 1, 3 and 4 suggest ways in which the definition might be adjusted to restrict the scope of the Bill and its offences to those substances that are
synthetic or are “novel”. We have previously debated the merits or otherwise of including a reference to “synthetic” in the definition of a psychoactive substance. As I indicated in Committee, there are a number of naturally occurring substances, known in years past as “herbal highs”, that are of concern and are far from safe. The noble Baronesses, Lady Meacher and Lady Hamwee, referred to those.
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Salvia divinorum, or salvia, is a Mexican plant, with leaves that contain psychoactive chemicals that produce hallucinations when chewed or when dried and smoked. There is concern that salvia can trigger psychotic episodes, particularly in young people and people with a history of mental health problems. Other plant-based psychoactive substances include Kratom, which is sold as a psychoactive ingredient in “branded” products such as Palm Wine and Dutch Haze. Kratom acts as a sedative at higher doses and carries the risk of physical dependency. A further example is fly agaric mushrooms, which are used for their hallucinogenic LSD-type properties. Our view is that while these may not warrant control under the 1971 Act, the Bill provides a legal framework, subordinate to the 1971 Act, which should be deployed to restrict their availability. To do otherwise would arguably be arbitrary and would leave a loophole for those looking to maintain their profits from this trade.
The noble Lord, Lord Paddick, has taken up the advisory council’s recommendation that we should amend the definition to cover only “novel” psychoactive substances. I have already referred to our policy rationale in capturing some long-standing intoxicating substances in the context of natural products. This reasoning applies equally to products synthetic in nature such as nitrous oxide, which the noble Lord, Lord Howarth, mentioned, and alkyl nitrites, or “poppers”, which were tolerated for many years when control under the 1971 Act was the only option.
The other side of the coin is one of legal clarity. As the Home Secretary set out in her response to the advisory council, the inclusion of the term “novel” to describe psychoactive substances in legislation was considered unworkable. To make an amendment of this kind to the Bill would suggest that Parliament intended to exclude from its ambit psychoactive substances in existence before the enactment of the Bill. The psychoactive substances market that exists just prior to the Bill’s enactment would not be covered. That is clearly not our intention or an acceptable outcome, as the point we are getting at is that every time we redraw the rules too tightly, these very devious and sophisticated drug operations simply change their terms to fit the new criteria.
Fixing a point in time to the definition was also considered unworkable. Do we take the date when a substance was first discovered, manufactured or identified in the recreational market? Or, perhaps, we should identify the date on which a substance became widely used—a term which itself would be challenging to define. Of course, we are looking for a general approach to all these substances, not a substance-by-substance one. It is our view that this market is so fluid that to specify a specific cut-off date, either for the generality
of psychoactive substances or for particular substances would be impractical, open to misunderstanding and abuse. The advisory council has helpfully clarified that the term “novel” should not be taken as introducing the concept of timing, which is just as well given the difficulties I have highlighted.
The UK is not unique in framing its legislation, where the predominant target is psychoactive substances generally, in the way set out in the Bill. Neither Ireland, New Zealand nor Australia—at both federal and state level—have used the terms “new” or “novel” and refer to psychoactive substances generally.
Amendments 2 and 5 to 8 seek to define a psychoactive substance—