I ask the noble Lord please not to go to the other side just yet but to stay with me a little longer. I was referring to the amendment of the noble Lord, Lord Paddick, and was talking about the use of the term “novel” in this context. That was the ACMD point, as opposed to the point about the use of “synthetic”, which I shall come to later and have already touched upon. Now the noble Lord, Lord Paddick, looks puzzled; perhaps I have lost him in gaining the noble Lord, Lord Tunnicliffe. Perhaps I may continue with what I was saying and then I will come to the specific point raised by the noble Lord.
I accept that while our target in this Bill is substances that are harmful when misused, or which have the potential to cause harm, the Bill seeks to define the effect of these substances rather than to make any explicit reference to their harms. Of course, the advisory council has a considerable and impressive track record in making these harm assessments. It is a scientific body of experts which for the last 40 years has been advising successive Governments. These amendments would require assessments of individual substances, or even groups of substances, for the purpose of bringing them within the scope of the Bill and its offences.
Our fundamental issue with that is that it would perpetuate the inadequacies and frustrations of our current approach under the 1971 Act. As the expert panel found, a substance-by-substance approach would not meet our core objective to get fully ahead of the market and scientific developments. It would allow the suppliers to adapt their range of substances on sale in response to new controls. That is exactly what has happened in the past and is behind the purpose of this legislation. Indeed, by driving innovation in the market, the current approach adds to the harms caused by these substances, as each new generation of psychoactive substances is more potent than the last. We need a change in gear—that is what the blanket ban will deliver.
Finally, Amendment 9 adopts a different approach again to how we define a psychoactive substance for the purposes of the Bill. Clause 3 enables the Home Secretary to make regulations, subject to the affirmative procedure, which add to or vary the list of exempted substances in Schedule 1. As we have previously debated, the regulation-making power in Clause 3 has been designed to future-proof the list of exempted substances and ensure that, for example, medicinal products are not inadvertently caught by the blanket ban provided for in the Bill. Schedule 1 contains broad categories of established substances and products that we want to exclude from this regime, mostly because they are already regulated by other legislation.
I turn to the specific point put to me by the noble Lord, Lord Tunnicliffe. He pointed to the advisory council’s concerns about proving psychoactivity as a point of law. I wrote to the noble Lord on this very issue, and he quoted my letter, in which I said:
“The Government is committed to supporting the law enforcement community in the exercise of their powers under the Bill. We will work with the national policing lead and College of Policing on the development of policing guidance”.
It is important to recognise that different powers in the Bill apply to different standards of proof. For example, the powers of seizure in Clause 42 operate to a “reasonable belief” test. An officer’s reasonable belief that a substance is psychoactive could be based on a number of factors, including the substance’s packaging, its markings or even whether the individual from whom it was seized appeared intoxicated and the officer could infer that the substance found might be responsible. The same “reasonable belief” test applies to the issuing of a prohibition notice or a premises notice. Applications for prohibition orders and premises orders are determined on the basis of the balance of probabilities.
In the case of a prosecution for an offence under Clauses 4 to 8—I think that this comes to the point that the noble Lord invited us to look at—we have the criminal test of “beyond reasonable doubt”. Clause 25, which is referred to in my letter, deals with the offence of failing to comply with a prohibition order or premises order. That clearly involves the civil test of the balance of probabilities. However, failure to comply with the order can involve a criminal sanction. Therefore, quite rightly the noble Lord came back and asked whether it was possible that we could end up with someone being caught between the two tests—the civil and the criminal—and facing a criminal sanction on the balance of probabilities test. As I understand it, that is at the heart of his concern. I can certainly give him the assurance that before any criminal sanction could be made under Clause 25, there would need to be proof to the criminal standard of “beyond reasonable doubt” that the substance involved was indeed psychoactive.
I hope that that clarification will help the noble Lord, Lord Tunnicliffe, with his concerns. I also hope that the point that I made right at the beginning to the noble Baroness, Lady Meacher, that we are continuing in a genuine dialogue with the Advisory Committee on the Misuse of Drugs, will allow her to—