My Lords, it is very fitting that we come to the consideration of this amendment moved by the noble Lord, Lord Howarth, who put, as he always does, a very persuasive case. The noble and learned Lord, Lord Hardie, then spoke about the consequences of the ease of access to and availability of these very dangerous drugs in our society. That, in a sense, represents the parameters of our debate. This, in the whole list of recommendations in the letter from the ACMD to the Home Secretary, was probably the one to which we were most strongly opposed. I understand that, when preparing such legislation, there is a need for people with great expertise in science but there is also a need for people who focus on the legal aspects and how the legislation will be interpreted.
We are very mindful of the danger of creating a loophole effectively around the social supply of such substances. Later, we will debate what might constitute personal possession. We have said that people would not be prosecuted for the personal possession of substances but a lot of people have said that that is very difficult to define. There have been lots of attempts at doing so. In the Drugs Act it was specified as an absolute quantity. That was then felt to be unworkable and it was left to the judgment of the constable on the ground.
You could provide a defence for carrying a large quantity of psychoactive substances by saying that they were for social purposes, but the people behind these drugs have proved to be incredibly adept at finding their way around legislation. They are very savvy, being aware of the descriptions in the legislation to the letter, and they organise their activities around that. We feel that this would be a very wide loophole that would be exploited in ways that we did not intend.
The Bill seeks to tackle the trade in psychoactive substances, and social supply is central to how the trade operates. Social supply by friends was identified by the expert panel as the most common source for acquiring psychoactive substances. Therefore, it is clear that social supply, alongside sales from head shops and purchases online, is critical to sustaining the market in these substances. In its recommendation to create a general prohibition, the expert panel did not suggest excluding social supply, nor has this approach been taken in other jurisdictions. Moreover, in this respect the Bill mirrors the position taken towards substances that are subject to a temporary-class drug order.
We need to tackle the supply routes to remove these potentially dangerous substances from our communities. Excluding social supply from the scope of the Clause 5 offences would significantly weaken the framework of the Bill, not least by creating a loophole that could easily be exploited. Excluding social supply would also send out a confusing message. If a group of friends were poly-drug users and bought drugs on behalf of each other, they would be committing an offence if they supplied, say, cannabis to one another but not if they supplied a psychoactive substance.
The approach taken in the Bill—this is a point that the Home Secretary underscored in her response to the ACMD—does not mean that enforcement action will focus on social supply networks. Nor does it follow that someone arrested for a social supply offence will necessarily face prosecution. We are simply saying, as did the noble and learned Lord, Lord Hardie, that that ought to be a matter for the prosecutors to decide. We are very conscious of the impact of criminalising young people—a point raised by the noble Lord, Lord Ramsbotham. That is why we have not made personal possession an offence, but social supply would be such a wide area that it would be too open to exploitation.
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 the Crown Prosecution Service will exercise their professional discretion, taking into all the circumstances of the offence and the offender. The public interest test will apply to any prosecution, and there will be an option of pursuing an out-of-court disposal in appropriate cases. I take the point that the noble Lord, Lord Paddick, made, particularly in relation to BME communities, which I shall come to in a moment.
Ultimately, however, if the circumstances justify a prosecution, that option should remain open. Moreover, these amendments would make the task of the police and prosecutors in tackling commercial suppliers that much harder. The amendments, if made, would add another element to these offences which would need to be proven, with drug dealers attempting to evade justice by seeking to argue that they received no payment for the transaction in question.
I know that the advisory council was particularly concerned to ensure that the enforcement powers in the Bill did not result in a discriminatory impact on members of black and ethnic minority groups. The Government fully share these concerns. In Committee, we had a good debate on the stop-and-search powers in the Bill, and I subsequently wrote to the noble Lord, Lord Paddick, to explain the necessity for these and how they would avoid the need for the exercise of more intrusive powers of arrest. In addition, my right honourable friend the Home Secretary made it clear that we must reform the way stop-and-search powers are used and we are committed to legislate to mandate changes in police practices if the exercise of these powers does not become more targeted and stop to arrest ratios do not improve.
As was said during debate on the previous group of amendments, we greatly value the advice from the advisory council on the provisions of the Bill. This is the one recommendation that it made which we are unable wholly or partly to accept. To exclude social supply would create a significant loophole in the framework of the Bill, and I therefore ask the noble Lord to withdraw his amendment.