My Lords, this amendment is intended to avoid a situation in which we may find ourselves criminalising rather large numbers of young people. I am not sure that that is what the Government really want to do, and I myself would not at all like to see it happen. The Bill provides that it is not an offence to possess a psychoactive substance, but all means whereby people might obtain psychoactive substances would be made illegal. I do not know whether Ministers expect people to come into possession of psychoactive substances rather as if they had descended like manna from heaven—or perhaps, as some people would see it, surfaced from hell.
At all events, very many young people use psychoactive substances. I do not think anyone knows what the scale of use is in this country. The report on new psychoactive substances that the Home Office commissioned and published last year indicated that the data are extremely thin and inadequate. That is no one’s fault; it is a very widespread problem and it is hard to monitor the reality of it. Still, a lot of people are using psychoactive substances, just as a lot of students are using substances that they think will enhance their cognitive powers, and I do not think that a ban is going to stop them doing so.
The question is this: if a group of people club together, in the words of the Advisory Committee on the Misuse of Drugs in its letter of 2 July, and one of them supplies a psychoactive substance to a circle of friends but does not do so for the purpose of financial gain—it is a shared social activity that they have agreed to undertake—should that become a criminal offence? I suggest that it should not. Secondly, more significantly than my suggestion is the urging of the ACMD in its letter to the Secretary of State, in which it says:
“The Bill has the potential to both criminalise and apply disproportionate penalties to many otherwise law abiding young people and adults…An example is a young person being prosecuted for ‘supply and importation’ in a case of ‘social supply’ where a young adult has bought small quantities of Novel Psychoactive Substances on-line on behalf of a group of friends who have ‘clubbed together’. The ACMD believes that criminal justice sanctions would be disproportionate to the harm caused by such acts”,
and I think the ACMD is right. In her reply to Professor Iversen’s letter, the Home Secretary offered some reassurance when she said that,
“the Bill contains both criminal and civil sanctions which will enable law enforcement agencies to adopt a proportionate response to offending behaviour. In addition, the police and Crown Prosecution Service will exercise their professional discretion taking into”—
I think the next word is “account” but it has been missed out—
“all the circumstances of the offence and the offender”.
So that is good. Oddly, she also says in the preceding paragraph that the expert panel,
“did not suggest excluding social supply”.
That is not how I read the expert panel’s report. Page 33 of that report, at the beginning of the section entitled “General prohibition on the distribution of non-controlled NPS”, in which the expert group set out to state the principles that should apply, said:
“Legislation of this type … can exclude … social supply”.
It did not recommend that it should exclude social supply, but contemplated that it should. I hope that the Government, in the light of that, might be prepared to think a little further about this issue.
5.30 pm
Why do young people use psychoactive substances? Young people are better able to answer that question than perhaps your Lordships are. However, there is an attempt to answer that question in the wholly admirable resource pack for informal educators that the Home Office produced just recently. In a section headed “Do we know why young people use NPS?”, the group that put the document together said that,
“curiosity is one of the reasons that young people might be tempted to use NPS. Of course, for some people, we can’t ignore that the enjoyment of the effects of NPS products will be a key motivation for use. They can offer escapism, relaxation, shared social experiences and adventure”.
If those are the motives, we have to be very careful that we do not end up criminalising people, because they look like pretty innocent motives. Very often we are talking about social rituals that groups of young people perform. There is of course also the reality that teenagers and people a bit older often feel the temptation to rebel against authority. If you ban them from doing something that they enjoy and think is fun, and they do not understand why it should be criminalised, it is quite likely that they will rebel against the ban. People experiment as they grow up and mature, and some people continue to use such substances through the decades of their life that follow, holding the view as they do—and as many highly competent scientists do—that the effects of individual controlled drugs and many new psychoactive substances are no worse than the effects of alcohol or tobacco.
That is one of the reasons why, as the House knows, I have taken the view that the safer course would have been to legalise and regulate a selection of such substances rather than to attempt to ban the lot. I am not at all saying to the House that we should encourage anybody to consume psychoactive substances; I am saying that we should not criminalise young people in the circumstances that I have quite narrowly defined in this amendment. We should not damage their education, their careers, or their prospects of obtaining credit or jobs. We should be careful not to alienate people who believe that their activities are innocent and should not be prohibited, and certainly we should be careful not to discriminate unwittingly against members of black and ethnic-minority groups. Again, I was encouraged that the Home Secretary in her letter to Professor Iversen said:
“I share the Council’s desire to ensure that the enforcement powers in the Bill do not result in discriminatory impact on members of black and ethnic minority … groups”.
Therefore I think that we are at one in recognising the risks there may be here.
I will repeat a figure I quoted at Second Reading. It seems tremendously undesirable that between 2009 and 2013, under the existing drug legislation, 60,000 young people were criminalised simply for possession, and there is a danger that this legislation will add to those numbers. It would therefore be helpful if the Minister could say if the Government will reconsider the question of whether someone who provides a new psychoactive substance to a circle of friends, not dealing and seeking to make money out of it, should be subject to the same penalties as an organised criminal or a street dealer. Would it be a statutory defence that
an individual obtained the psychoactive substances for themselves and their friends and not for sale or profit? Does the Minister envisage that there would be prosecutions in such a circumstance, and does he see that as being in the public interest? I beg to move.