Psychoactive Substances Bill [Lords]

Public Bill Committee, 27 October 2015.

George Howarth (Labour, Knowsley)

Before we begin, I have a few preliminary announcements that I hope will be helpful. First, the Committee’s quorum is six members, including the Chair. Secondly, will people be good enough to switch any electronic devices to silent? I remind the Committee that, regrettably, tea and coffee are not allowed during sittings. Any Members who wish to remove their jacket, or any other limiting item of their apparel, should feel free to do so.

We will now consider the programme motion on the amendment paper before considering a motion to enable the reporting of written evidence for publication. In view of the time available, I hope we can take those motions formally without debate.

George Howarth (Labour, Knowsley)

Copies of written evidence received by the Committee will be made available in the Committee Room.

We now begin line-by-line consideration of the Bill. The selection list for today’s sittings is available in the room and shows how the selected amendments have been grouped together for debate. Grouped amendments are generally on the same or a similar issue. A Member who has put their name to the lead amendment in a group will be called first, and other Members are then free to catch my eye to speak on all or any amendments within the group. A Member may speak more than once in a single debate. I will work on the assumption that the Minister wishes the Committee to reach a decision on all Government amendments.

Please note that decisions on amendments take place not in the order they are debated but in the order they appear on the amendment paper—in other words, debates occur according to the selection list and decisions are taken when we come to the clause that the amendment affects. I hope that explanation is helpful. I will use my discretion to decide whether to allow separate stand part debates on individual clauses and schedules following the debate on relevant amendments.

Clause 1 - Overview

Mike Penning (Conservative, Hemel Hempstead)

I beg to move amendment 1, in clause 1, page 1, line 5, after “9”, insert “and (Possession of a psychoactive substance in a custodial institution)”

George Howarth (Labour, Knowsley)

With this it will be convenient to discuss the following:

Government amendment 7.

The motion to transfer subsection (9) of clause 6.

Government amendments 10, 17, 18, 26, 30 and 33 to 36.

Government new clause 2—Possession of a psychoactive substance in a custodial institution.

Mike Penning (Conservative, Hemel Hempstead)

It is a pleasure to serve under your chairmanship, Mr Howarth. I also look forward to serving under Sir David’s chairmanship. Thank you for setting out so concisely how the Committee will proceed.

I thank Her Majesty’s Opposition and the Scottish National party for being so supportive of the principle behind the Bill, on which there was extensive discussion in the other place. One area that was discussed extensively in the other place is the use of psychoactive substances in prisons and other custodial places. The Lords sought to address the issue by amending clause 6 to make the supply of psychoactive substances, and offers to supply psychoactive substances, on prison premises a statutory aggravating factor. On reflection, we are content with the Lords amendment, not least because the governors and the Prison Officers Association support making possession a specific offence.

We also support the Lords amendment following the campaigning by my hon. Friend the Member for Winchester and the hon. Member for Barnsley Central (Dan Jarvis), who has spoken to me privately about this matter on more than one occasion—I can see the shadow Front-Bench team nodding. He really understands the matter and has been campaigning on it for many years, and it would be inappropriate if we did not acknowledge that.

I am pleased that my hon. Friend the Member for Winchester is a member of the Committee. He knows all too well that the substances are a dangerous and pervasive problem in prisons and other secure estates, not only for prison officers but for other staff and prisoners. Having reflected on the Lords amendment we are content to retain it; Government amendment 7 simply makes some drafting improvement so as to ensure that the measure is tight and, in particular, to provide a definition of a custodial institution.

We have concluded, however, that we need to go further, with new clause 2 introducing a new offence for a person who is in possession of a psychoactive substance in a custodial institution. I think everyone agrees that the use of psychoactive substances needs to be addressed, and it is not about just prisoners; it is about other staff who may, sadly, wish to bring such substances on to the premises, and visitors. The safety of visitors, prisoners and staff is, of course, paramount.

The introduction of a possession offence in prison would enable the police and the Crown Prosecution Service to pursue cases of prisoners, visitors or staff being found with small quantities of psychoactive substances in prison, and would support the stance that psychoactive substances are not to be tolerated in prison. The measure is fully supported across the House, by all the experts and panels, and within the Prison Service and other custodial suites. The measure concerns not just prisons, but any form of custody, particularly immigration detention centres and youth detention centres. I hope that in that way, along with the help we have had from the Lords, a simple case will be made about the possession of a psychoactive substance in prisons and other custodial centres, as opposed to in the community where it is not an offence. That is needed, to make a difference. We have listened carefully, and that is exactly what we will do.

Lyn Brown (Labour, West Ham)

Mr Howarth, I look forward to serving under your chairmanship and receiving your guidance. This is my first outing as a shadow Minister on a Bill, and I know that I am sitting under two experienced Chairs who will make my life so much easier than it might otherwise have been. That is a plea, in case you had not worked it out.

As I made clear during my speech on Second Reading, we support the Bill’s principles and general approach. The 2015 Labour manifesto included a commitment to ban the sale and distribution of dangerous psychoactive substances. A blanket ban with listed exemptions appears to be the most effective means of beginning to tackle the serious public health problems that the drugs have brought about. During the Committee stage, we will look at the weaknesses in the drafting of the Bill, and will table amendments to try to improve it. I hope that the Government take our critique and suggestions in the constructive manner in which they are intended. We want to work with the Government, through the Committee, to make the Bill as effective and robust as possible.

The Government have elected to insert a new clause into the Bill, which will make it an offence to possess a psychoactive substance in a custodial institution. The new clause amends clause 1, which is consequential on the new offence. The Bill already contains offences of supply, and of possession with intent to supply, psychoactive substances, which apply to prisoners and staff as much as to the rest of the public. The new clause makes it an aggravating factor to supply such substances in or around a prison, meaning that the only new power would be the ability to further punish those involved with psychoactive substances. Although I share the Government’s concern about the problem of such substances in our prisons, I am not convinced that we lack enough statutes to bring charges against prisoners, staff and visitors.

I also assume that many of the prisoners in possession of and taking psychoactive substances in our custodial institutions are likely to be addicted and are possibly in prison because they needed to feed their habit. It would perhaps be better to treat such instances as a health issue rather than one of enforcement. As I have said, the Bill already contains offences of supply and possession with intent to supply in or near a prison as an aggravated offence, so I am not convinced that the addition of possession is necessary.

As I said on Second Reading, I am concerned by the findings in the prisons and probation ombudsman’s report of July of this year that new psychoactive substances had been a factor in at least 19 prisoner deaths between 2012 and 2014. Her Majesty’s inspectorate of prisons’ annual report was just as concerning. It found that the availability of new psychoactive drugs has

“had a severe impact and has led to debt and associated violence.”

New psychoactive substances are undoubtedly a real problem for our prisons, which I am sure is what motivated the Minister to table the amendment. However, neither of the reports asked for legislation to help deal with the problem. Indeed, the drugs that the reports mention as causing problems, Black Mamba and Spice, are already controlled by the Misuse of Drugs Act 1971, meaning that possessing the most problematic substances in our prisons is already a crime. In addition, the Prison Service already has powers to discipline and punish prisoners for possessing psychoactive substances though prison rules.

Both reports stress that better detection mechanisms for new psychoactive substances need to be in place. HMIP stated that many new psychoactive substances do not show up in mandatory drug tests, making it difficult for prison officers to know what they are dealing with and the scale of the problem they face. Too few drugs tests are taking place, due to inadequate staffing. The prisons ombudsman highlighted that the sniffer dogs used by prisons to detect drugs often could not identify new psychoactive substances, and that it was still waiting for X-ray body scanners to detect substances concealed in body cavities.

I understand that the prevalence of Spice in prisons can be high. Will the legislation have a deterrent effect? Is it practically possible to enforce, or will it be like handing out speeding tickets at a grand prix? Will the Minister explain what prompted his desire to introduce criminal sanctions for possessing a psychoactive substance in a prison? Does he genuinely feel that the prison system has enough resources to tackle the direct supply and demand of such substances? It does rather feel that the amendment has been tabled out of a desire to do something about the problem in our prisons because the Minister and the Government have not been able to do the right thing, which is to address the staffing and resources issues raised by HMIP and the prisons and probation ombudsman.

During my Second Reading speech, I stressed that we have to reduce supply and demand for such drugs, meaning that we need to focus on education, including education for prisoners and, I suggest, their families. The Minister’s letter to the Chairs of the Committee states that the new offence provided by this amendment will complement the work of the National Offender Management Service to

“educate prisoners, staff and visitors.”

Will the Minister update us on what changes the Home Office and the Ministry of Justice have made to the drug education strategy since July, which is when the prisons and probation ombudsman report recommended that the Prison Service should put in place a specific education programme about the dangers of psychoactive substances?

In conclusion, I am unconvinced that the new offence would provide any useful tools in tackling the problem of novel psychoactive substances in our prisons. It is already against prison rules to possess a psychoactive substance. It is also against the law to possess Black Mamba and Spice—the NPS that currently cause the most damage in our prisons. They are already banned. Custody professionals seem clear that the priority needs to be ensuring that prisons have the resources to deal with these substances and to educate their staff and prisoners. I think that makes sense and I agree with them.

Steve Brine (Conservative, Winchester)

Unsurprisingly, I support the Government amendment. I will let my right hon. Friend the Minister answer directly the points made by the shadow Minister; I just want to make a couple of comments.

As I said in my Second Reading speech last Monday evening, there is unquestionably a huge problem in the secure estate. I referred to the work of RAPt—the Rehabilitation for Addicted Prisoners Trust. Before the debate, that excellent organisation sent hon. Members a research briefing, “Tackling the issue of New Psychoactive Substances in prisons”. It lays the situation out pretty starkly. As I did not last week, I will not pull my punches now. RAPt says that NPS use has quickly become widespread among prisoners. The annual report from NOMS affirms that increased NPS use among prisoners is generating high levels of debt, intimidation and violence between prisoners and is likely to be the main catalyst for the recent rise in attacks on prison staff. I will come on to my constituency experience of that in a moment. RAPt says on the scale of the problem:

“The number of prisoners using NPS varies across prisons”—

across the estate—

“but some estimates suggest as many as 60% to 90% of the prison population use, or have used, NPS.”

As the shadow Minister said, Spice seems to be the NPS of choice at the moment. It is also known as Black Mamba—I cannot ever say that without smiling—or Clockwork Orange. Some of the quotes in the report by RAPt are shocking. They include the following:

“Prisoners who had used Spice described it as being ‘like a crack addiction’ or ‘like cannabis, just a lot stronger’…Others have seriously injured themselves head-butting mirrors thinking they were being attacked…One prisoner had witnessed ‘someone bury a knife in someone’s neck [on Spice] ’cause they were paranoid’…There is also a game that is becoming popular in prisons”—

this has been reported to me—

“It is often called the…50 pound challenge. In the game, prisoners are challenged to smoke £50 worth of Spice. If they manage to smoke it all before breaking down or passing out, then they get it for free. If they fail they have to pay for it.”

We can see how this is becoming the new currency in prisons. When I first started going into prisons for my work on the Justice Committee and in my constituency, tobacco was the currency, but without question NPS are becoming the currency. I have Her Majesty’s Prison— and young offenders institution—Winchester in my constituency. As I said on Second Reading, Dave Rogers, who is a very good governor, is struggling to deal with the effects of Spice at the moment inside Winchester prison. He told me that last month there were three ambulances on the estate at one time for three prisoners who had taken NPS in the exercise yard and were unconscious. That is gravely concerning to me.

The shadow Minister says that we currently have powers. Under the Bill, simple possession of a psychoactive substance in the wider community is not criminalised, but the Government have rightly concluded that the problem is such that it requires a different approach in the context of the secure estate because it is particularly destructive there. All my experience of working inside and outside prisons is that control and order is fundamental to prison life. When that breaks down, we have anarchy and people unfortunately die. People are dying in prisons at an alarming rate. There are many and varied reasons for that, but they are dying under our care. The state is their guardian and they are dying under our care.

I completely agree with and want to restate this point made by the Minister in his letter to us:

“The introduction of a criminal offence for possession…in a custodial institution would complement the continuing work by the National Offender Management Service to educate prisoners, staff and visitors about the harms caused by psychoactive substances and…enable firm measures to be taken to punish those who possess psychoactive substances in prison.”

The shadow Minister is right to say that at the moment there is an offence that can add 42 days to an offender’s time in custody. [Interruption.] I think that the Minister agreed from a sedentary position. However, this measure takes that on much further and sends a much clearer message.

Lyn Brown (Labour, West Ham)

I completely agree with everything that the hon. Gentleman has said. I want to ask him, however, about education. If we are going to deal with individual prisoners for possession rather than supply—pushing—I am absolutely with him, but surely education and treatment would be more beneficial to not only the prisoner but the community at large.

Steve Brine (Conservative, Winchester)

I was just about to come on to that; the shadow Minister is a visionary. I want to have my cake and eat it too; I want to strengthen the law in this area, but the wider challenge, as the governor at Winchester prison said to me, is that the debate today is not only about making NPS illegal and changing the law on possession in prisons. In my experience, prisoners will always want to use illegal substances. They will always want to get “loaded”, as I said on Second Reading, whether that be through a class A drug, a class B drug or NPS.

The challenge is supporting prison governors and staff to help those who want to kick the habit, which the vast majority of prisoners want to do, in my experience. Prison services are being hugely stretched. Punishments need to be substantial—those were the governor’s words—but the trick is to be careful that the clause does not incentivise more bullying and coercion to convey on behalf of prisoners, given that this is now quite an expensive currency within the secure estate.

I could not agree more with the shadow Minister’s wider point about tackling drug use. The Prime Minister said in his conference speech in Manchester last month that we need to get away from the “lock ’em up or let ’em out” mentality, to which I nearly stood up and said, “Hallelujah!” That would not have been a fantastic career move on my part, so I said it internally. The shadow Minister mentioned the detection of drugs, whether NPS or any other substances, as they come into prison. I said last week on Second Reading that the drug dogs we use in my constituency prison and across the estate are not trained in detecting NPS. They are highly intelligent creatures but do not spot those substances, so we have a problem.

We have a problem with drugs getting into prisons. Anyone who has worked in prisons knows the incredible ways in which prisoners and their families get drugs into prison and the risks they will take, often involving children and relatives. For most of my constituents, it beggars belief that we have a drug problem in prison at all. They are secure institutions, but the problem is a massive one, and we must do an awful lot better. The Minister for Prisons, Probation and Rehabilitation, my hon. Friend the Member for South West Bedfordshire (Andrew Selous), to whom I speak regularly about this, is acutely aware of the issue.

I mentioned what the Prime Minister said because of the much wider point of prison reform. When I was on the Justice Committee, we went to Texas. People always laugh when I say this, but we went to look at how Texas do criminal justice. Actually, Texas do criminal justice in a much more enlightened way than we do in this country. The guy in the state legislature who was behind the Right On Crime initiative said that of the people in prison, we are scared of 30% and mad at 70%, and that we need to get a bit smarter about the people we are mad at and ensure we lock up the people we are scared of. That sums up the philosophy we should have in this country.

I was incredibly pleased to see that the Lord Chancellor and Secretary of State for Justice recently went to Dallas and Houston to look at the work being done there, in terms of drug courts and getting much smarter about how we tackle abuse and addiction in our society. Abuse and addiction in society will ultimately end up in the secure estate, because the secure estate is merely a reflection of our society, whether we like to admit it or not.

We have to get smarter about how we use criminal justice and correctional facilities in this country; that is the wider point. Amending this piece of legislation on possession in prison is the right way to go, but it is just the icing on the cake. The much bigger picture is dealing with the cake itself, which is who we lock up, why we lock them up and what we do when they are in there. At the moment, they are bored to tears; half the reason they are bored to tears is that they have nothing to do, and the devil makes work for idle minds. Without going into a Christian diversion—I can see I have already tested your patience, Mr Howarth—there is a huge dark side in our prisons, and right now, this is the greatest manifestation of that inside the secure estate. I therefore support the clause.

Owen Thompson (Scottish National Party, Midlothian)

I, too, appreciate the opportunity to participate in the Committee. This is my first time, so please bear with me. My party has also tabled amendments, and I look forward to discussing them. I welcome, as do others, the fact that there is broad agreement on many aspects of the Bill. We all want to point in the same direction but the issue is how we get there.

I echo much of what the shadow Minister said, in absolutely recognising both the need for action to be taken on prison estates and the challenges that involves, but I am not yet entirely convinced that the measures will achieve the outcomes we want. My party certainly does not oppose the amendments at this stage, but we wish to see further consideration on Report.

In many ways, the issues regarding prison estates are slightly different from the wider issues covered by the Bill. There is an absolute need for a greater education programme, to ensure an awareness of the effects of NPS. In its evidence, the Trading Standards Institute made a point about testing. How can systems be put in place to ensure that substances that enter prisons can be identified as psychoactive and then isolated and taken out of the equation? I again echo the shadow Minister in saying that in the prison estate the need for treatment is even greater than elsewhere. For those who find themselves in a secure estate as a result of an offence caused by NPS addiction, treatment is critical because removing the addiction is the only way to start to take the substances out of the equation—to remove them as today’s currency of choice.

I will be brief at this point, but I again state that we want to see a far greater focus on education and treatment while recognising the need to take action that focuses on prisons in particular.

Mike Penning (Conservative, Hemel Hempstead)

I fully understand many of the points raised by the shadow Minister and other colleagues. The measures are not a silver bullet; I think we all accept that. Action needs to be taken in the context of better treatment programmes. We are starting to understand that. Addiction to NPS is a particularly difficult matter. The action taken categorically has to be about education, and in the prison estate it also has to be about detection.

The blanket ban helps. We spoke earlier about Spice and Black Mamba. Those are generic terms for a substance that is tweaked by chemists every time we chase the matter. We are here now because we have not been able to get on the front foot, in front of the people who are trying to destroy others’ lives and, frankly, make a small fortune as well.

My hon. Friend the Member for Winchester, and the shadow Minister, rightly pointed out that there are already sanctions, but they are fairly limited within prisons, to be honest. We need to listen to the experts, to the people who deal with secure estates on a day-to-day basis. If they say that the substances are a major issue not only in that they are a currency in the estates but because of the safety of staff, visitors and prisoners, we need to act. We have tabled the amendment and are making an exemption regarding possession within prisons because that is what we have been asked to do. My Prisons Minister has told me that it is what is being asked for. My hon. Friend the Member for Winchester has spoken to some prison governors and I have spoken to others. They have asked for the measure. Is it the only answer? No. NHS England in our part of the world, NHS Scotland and NHS Wales need to step up to the plate and do some more work, because they run the treatment programmes within the prisons.

The director general of NOMs is specifically chairing across groups to make sure that we get a better understanding and better education for staff and visitors. The best option here is not actually to convict anybody but to convince people that they should change their behaviour; but we live in the real world and I acknowledge that that is not going to happen. Nevertheless, we have to send a message. That message was sent to me as the Minister from the people on the frontline that they needed this, and it is my job to make sure that they have it, so I hope that we will approve it.

Mike Penning (Conservative, Hemel Hempstead)

I beg to move amendment 2, in clause 1, page 1, line 7, leave out “Section 10” and insert “Section (Exceptions to offences)”

George Howarth (Labour, Knowsley)

With this it will be convenient to discuss the following:

Government amendments 5, 6, 8, 9, 12, 28, 29 and 37.

Government new clause 3—Exceptions to offences.

Government new schedule 1—Exempted activities.

Mike Penning (Conservative, Hemel Hempstead)

The Government made a commitment in the other place during the Bill’s passage there to review the existing exemption for research activities and to strengthen it. That commitment was important and we shall push forward with it now, as we would all agree that bona fide research is a vital area. In doing so, we are following the consultation of the Academy of Medical Sciences and others, and we are confident that this exemption is necessary, sufficient and robust.

The new schedule also provides an exemption for healthcare-related activities, which I think we would all support. That is obviously very important. We do not want to make a problem for individuals. We see that this exemption has a complement in the exemption of medical products in schedule 1. In providing the new exemption we are going for a belt and braces approach, and we fully accept that that is what we are doing. I think that is very important.

New clause 3 enables the Home Secretary to add and vary a list of exempted activities in a new schedule. This regulation-making power replaces that in clause 10 of the Bill which covers the same ground, so we will effectively be removing clause 10 and replacing it with new clause 3. In the light of what we have seen in the other place, we felt that that is important. When we get to clause 10, obviously we will not move it. Hopefully we can move on, because I think this is an agreed part of the Bill. It is important that as different substances become available, the Home Secretary has the powers to add to and vary the list.

Lyn Brown (Labour, West Ham)

Government amendment 2 is consequential on later Government amendments, providing for exceptions for medical and academic research. One of the concerns raised by the Advisory Council on the Misuse of Drugs was about the impact of this legislation on legitimate scientific work. As the ACMD made clear, in the original drafting there was an exemption for clinical trials but no mention of exemption made for laboratory research in academia or industry.

The Academy of Medical Sciences also wrote to the Home Secretary to raise its concerns. An example picked out by the AMS is that the Bill could criminalise neuroscience researchers using psychoactive substances as experimental tools to help us better understand the causes of some mental illness. Several Members of the House of Lords raised that as an issue prior to Report in that place. Lord Rosser, who led on the Bill for Labour in the House of Lords, highlighted on Second Reading that it is of vital importance that the Bill does not

“inhibit or restrict important medical research that will help us to improve our knowledge of drugs and their impact”.—[Official Report, House of Lords, 30 June 2015; Vol. 762, c. 1964.]

I thank Lord Rosser for highlighting that, and for seeking assurances from the Government that the original clause 10 of the Bill will not inhibit or restrict legitimate research by the terms of the Bill. I also thank him for emphasising the need for procedures relating to medical research to be made exempt under the Bill. Without his diligent work, the Government’s new clause, which deals with many of the inadequacies of the original drafting, may not have been possible.

I also thank my hon. Friend the Member for Denton and Reddish, who spoke passionately on Second Reading about the need for clearer exceptions for medical research. He was absolutely right to raise concerns that the vague definition of psychoactive substances in the Bill will impede legitimate research.

Andrew Gwynne (Labour, Denton and Reddish)

It is a pleasure to serve under your chairmanship, Mr Howarth. I am grateful for my hon. Friend’s flattering remarks. The United Kingdom is a world leader in research of this kind. Does my hon. Friend share my concern that the unintended consequence of parts of the Bill may be to inhibit some of that research? We need to ensure, therefore, that the Bill is absolutely tight, so that that research can continue.

Lyn Brown (Labour, West Ham)

I certainly agree. On Second Reading, my hon. Friend said:

“Would it not be a tragedy if the United Kingdom, one of the leading research nations in the world, avoided finding a cure for some awful psychiatric disorder due to our failure to include the appropriate exemptions for scientists?”—[Official Report, 19 October 2015; Vol. 600, c. 779.]

Thanks to pressure exerted on the Government, Lord Bates, who led the Bill through the Lords for the Government, wrote to Lord Rosser and other peers to state that the Government were actively considering the issue and were in discussion with the ACMD. He pledged that the Government would table amendments addressing concerns about medical research during the Commons Committee stage. His colleague, Baroness Chisholm of Owlpen, stated that the Government have no intention of stopping “bona fide research”. I am glad that the Government listened to Labour’s concerns and have delivered on Lord Bates’s promise by introducing a new clause that will specifically exempt academic activities. I absolutely support the amendments.

However, I cannot help but feel that the Government could have avoided the need hastily to draft the amendments and table some significant information if they had properly consulted the ACMD before they produced the first draft of the Bill. This has been a very quick—I would not say rushed—Bill. We had Second Reading in the Commons a week ago and here we are in Committee, and there are still issues that are yet to be completely ironed out in Committee to make the Bill enforceable in our courts of law.

We need to take into consideration organisations such as the ACMD, which consists of leading experts on drugs, many of whom work in academia. If they had been consulted on the original draft of the Bill, they would undoubtedly have spotted the problems with the Government’s original plans. The amendment could have been in the Bill from the beginning, and parliamentary time could have been spent more productively in looking at the goals of the Bill and how well the Bill will help the Government to achieve them.

Mike Penning (Conservative, Hemel Hempstead)

At the outset, I want to say that legislation is passed in Parliament by introducing a draft Bill, which is then scrutinised. I welcome the scrutiny that took place in the Lords. The reason why the Bill started in the Lords—this is probably above my pay grade—is that there are so many genuine experts there. Perhaps if it had started in this House the same amendments would have been introduced by colleagues on both sides of the House. I do not mind that; colleagues who know me well enough know that I am pragmatic.

I have a couple of points about the shadow Minister’s comments. This should have been done years ago under previous Administrations—I think we all know that. For every day that we do not do this, people are dying. I accept that it is rushed, to a degree—there was a huge gap between the Bill being in the Lords and coming to us—but it is right and proper for this House to expedite the Bill, while doing everything possible about any anomalies that generally concern groups of people, in particular on the research side. If there were any such anomalies in the legislation, I would let no one prevent us from changing things. That is why we have tabled the amendments. Unashamedly, I have already mentioned belt and braces. If we need to amend things further as we go on, we will do so, so that we do not prevent research in such an important area.

I wanted to touch on the scrutiny work done in the other House. I sat in on the debate on Second Reading and Report, on the steps of the Throne—it is a great honour to be able to do such things—and it was fascinating. One group of people was fundamentally opposed, as in our House, but it was a tiny group. We got around bits such as “Will this affect people in churches with incense?” and, once we had got rid of that stuff, we could actually ask, “Does the Bill do what it says on the tin?” and “Does it allow the research to continue to take place?” which is absolutely vital. New clause 3 would improve the Bill, and that is why we can take out clause 10. That is because we were listening, and this is the way forward.

Andrew Gwynne (Labour, Denton and Reddish)

It is a pleasure to serve under your chairmanship, Mr Howarth.

The Committee has the benefit of a two-for-one offer from the official Opposition: we have not one shadow Minister, but two. We feel strongly that we are dealing not only with a home affairs issue but a public health one. As Labour’s shadow public health Minister, I think it is important for us to have a health voice in Committee.

I will not test your patience, Mr Howarth, by going over what we discussed in detail on Second Reading, but I want to make it clear in the clause stand part debate that we support the general aims of the Bill. The Labour party committed to banning legal highs before the last election, and we do not shy away from that commitment today. On Second Reading we pointed to evidence from the Republic of Ireland and it is true that the only way to draft an effective Bill is to include a blanket ban. Most if not all Members of the House of Commons—

George Howarth (Labour, Knowsley)

Order. I am sure that the hon. Gentleman is about to address his remarks to clause 1—

Andrew Gwynne (Labour, Denton and Reddish)

Oh yes.

George Howarth (Labour, Knowsley)

I look forward to that with great anticipation.

Andrew Gwynne (Labour, Denton and Reddish)

Absolutely, Mr Howarth. I was only stating our agreement. The clause constitutes the overview of the structure of the Bill and creates a blanket ban on the production, distribution, sale and supply of psychoactive substances in the United Kingdom. That is why discussion of the blanket ban was relevant to the stand part debate.

We have to place it on the record, however, that we recognise the need to control the production and supply of such substances, and the need to educate young people about the real nature of the drugs, as my hon. Friend the Member for West Ham said. The Minister was right that drugs such as Black Mamba and Spice are already banned, but they can be tweaked and we need to be on the front foot. We also need to look at the health of prisoners, which is why I am pleased that the Minister has tabled the Government amendments. I am pleased that the issue of research has been clarified, because that situation needed fundamental improvement in the Bill. I am satisfied that the Minister has committed to further improvements on Report, if necessary. We will hold him to that. With that, we fully support the Government’s aims and intentions to ban legal highs.

Clause 2 - Meaning of “psychoactive substance” etc

Owen Thompson (Scottish National Party, Midlothian)

I beg to move amendment 51, in clause 2, page 1, line 14, leave out subsection (1) and insert—

(a) is not prohibited by the United Nations Drug Conventions of 1961 and 1971, or by the Misuse of Drugs Act 1971, but which may pose a public health threat comparable to that posed by substances listed in these conventions and

(b) is not an exempted substance (see section 3)”

George Howarth (Labour, Knowsley)

With this it will be convenient to discuss the following:

Amendment 43, in clause 2, page 1, line 15, leave out paragraph (a) insert—

“(a) is a compound capable of producing a pharmacological response on the central nervous system or which produces a chemical response in vitro, identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act 1971, and”

Owen Thompson (Scottish National Party, Midlothian)

We felt that there was a weakness in the Bill around the definition of a psychoactive substance. This is a fundamental aspect of how we move the proposals forward. As the Minister has mentioned, often when substances are brought on to the market, efforts are taken to make them illegal. The chemists go back to the drawing board, try to tweak the formula and the same thing comes out with the same effect but with a different formula, so it is not covered. We need to make sure that the definition is as strong as possible, so that action can be taken where required.

Our amendment moves forward some of the issues on definition that the Advisory Council on the Misuse of Drugs raised at the Home Affairs Committee. We accept that the Opposition Front Bench also has amendments on similar lines which do likewise. However, questions remain on how action can be taken because, even with a stronger definition, how can prosecutors prove that something is capable of having a psychoactive effect? This point was commented on in relation to prisoner status. How are tests done? What are the tests, and who carries them out? Would expert evidence be required in every instance where a substance is being looked at? Would that be considered under the definition and who would carry out that function?

I will be brief, because I simply want to make sure that we can have as strong a position as possible around a definition. I am not seeking to press the amendment to a vote, but to raise the matter with Ministers to make sure that on Report, these comments can be taken into account to make sure that the definition is as strong as it can be.

Mike Penning (Conservative, Hemel Hempstead)

Like all things in this House, events are often superseded. I looked carefully at the ACMD’s evidence to the Home Affairs Committee and colleagues now have copies of letters from that very expert panel as to whether it is now confident that we can define “psychoactive”. We will use its expertise as we go forward.

Earlier, we touched on why we had not consulted more with the ACMD when we formulated the Bill. Several colleagues at Second Reading and, I think, the shadow Minister earlier raised that point. Incidentally, the chairman of the ACMD and two members of the Committee were on the expert panel considering the sphere of issues that we needed to bring forward, so we did consult them. Obviously, with the chairman of the ACMD physically present, there was a huge input from the council. The ACMD is working with us. Its letter clearly states that it thinks we can define “psychoactive”. That is very important.

My concern around amendment 44 is the move to “synthesis”. Initially, the ACMD was in that position, but it has moved away from it. We are absolutely adamant that a definition cannot be arrived at through “synthetic”; it has to be a blanket ban. I think everybody is agreed on that. The Irish situation was exactly the same. We have learned from what happened in Ireland. Other countries are now following us. If we were to limit the Bill in the way that the amendments indicate, it would be quite difficult. I will wait to hear the shadow Minister’s comments.

Lyn Brown (Labour, West Ham)

I fear the clause gives rise to three issues, which it is important to consider. The first concerns the intended scope of the Bill and how it has apparently widened with Government drafting. The second issue is how the state can prove that a substance is psychoactive, particularly when seeking prosecution. Our amendment is based on language recommended to the Home Secretary by the ACMD, which offers a new definition of a psychoactive substance. We believe that the ACMD’s language may provide a better response to these issues than the current drafting.

The final and related issue is that we need to know whether we have the necessary resources in place to test for psychoactivity. The Committee will be aware that one concern that the ACMD raised about the drafting of the Bill is that it refers merely to psychoactive substances, whereas in previous discussions of the problem—including the impact assessment for the Bill and the expert panel report, which recommended the approach taken by the Government—the words “psychoactive substance” have always been prefixed by the word “novel” or “new”.

According to the ACMD, the prefixes of “new” or “novel” indicate that we are referring to substances that have been produced in order to mimic the effects of controlled substances but currently sit outside the controls of the 1971 Act. The ACMD is concerned that, by excluding the words “novel” or “new”, the Bill has expanded in scope beyond its intended target and is now disproportionately broad.

The Home Secretary has written to the ACMD and indicated that she thinks that the inclusion of the words “new” or “novel” in the Bill would be unworkable, as that would suggest that substances that existed before the Bill came into place ought not to be controlled. She also pointed out that many of the NPS that we want to control are not new, in the sense of being newly created; it is just that they have only recently been used for recreational purposes. For example, mephedrone was first synthesised in 1929 and “forgotten” until it was rediscovered in 2004. Its use became widespread around 2007.

However, on Lords Report, Baroness Meacher proposed that the word “synthetic” be inserted before “psychoactive substances” in order to restrict the Bill to its intended scope of drugs synthetically designed to mimic existing drugs.

On 17 August the ACMD wrote again to the Home Secretary with a series of recommendations of how the definitions in the Bill could be tightened. One recommendation was to include a definition of substance in the Bill to include the word “synthesis” and specifically to mention an effect that has a pharmacological similarity to drugs controlled by the 1971 Act. That would, it argued, cover the intended scope of the legislation.

On Friday, the ACMD wrote once again to the Home Secretary and reiterated that its recommendation was that language be used that invokes pharmacological similarity to drugs controlled by the 1971 Act. Our amendment is based on the language recommended by the ACMD.

I am sorry that I am not able to take in the information just laid before us. I will use my lunch break to read, digest and understand it. I am a woman who did not know what poppers were until two weeks ago. It is not a feasible idea for me to listen to the Minister and the debate and take in this new information.

On Lords Report, it was argued from the Government Benches that adding the word “synthetic” would be inappropriate as there are organic substances such as salvia and kratom that are both psychoactive and harmful and ought to be controlled. In the Home Secretary’s letter to the ACMD she makes a similar argument. She suggests there are substances that have long been tolerated in the absence of a more comprehensive legal framework, yet have known harms.

If these organic substances have known harms, will the Minister tell us why they cannot be controlled by existing powers in the Misuse of Drugs Act? After all, it is surely not possible for drug producers to come up with hundreds of new organic compounds and so overwhelm the authorities in the same way as they have managed with synthetic substitutes. The ACMD does not seem to be worried by a reference to synthesis and has said:

“The small number of problematic psychoactive natural products could be considered by the ACMD for control under the Misuse of Drugs Act 1971.”

We should take seriously the issues raised by the ACMD and look carefully at the language it recommends, so that we can be sure that the Bill targets as well as possible the problem that we all want it to tackle. Currently, there is much feeling that the definition is too unspecific and does not adequately define a psychoactive substance. Unfortunately, that could lead to a situation in which the Bill is unenforceable and open to legal challenge on whether a substance is psychoactive.

I understand that the latest letter from the ACMD to the Home Secretary, published last Friday, suggests a more objective, technical definition with reference to specific groups of psychoactive drugs. Many substances in those groups have been tested and researched and those found to be harmful have already been controlled under the Misuse of Drugs Act 1971. Including a specific list of classes or groups of substances that are associated with psychoactivity and harm, as in the Misuse of Drugs Act, makes it more likely that new related substances will have the same psychoactive capability.

On rereading amendment 43, I wonder whether two different interpretations are possible. The possible ambiguity is in what the phrase

“identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act”

might refer to. My initial understanding was that it referred to the pharmacological response or the chemical response—that is, a substance would be controlled if it produced a response identical or similar to the responses produced by substances controlled under the MDA. However, I wonder whether the phrase could refer to a compound, and so imply that a substance would be controlled if it produced any pharmacological or chemical response and is identical or similar to substances controlled under the MDA.

If interpretation one is correct, the clause captures substances according to their effect, which is what I would have expected; but if interpretation two is correct, the clause would seem heavy-handed as, in principle, it would capture a benign substance that had only a limited effect but happened to be similar to a drug controlled under the MDA. Many exclusions might then be needed. If interpretation one is correct, the approach would capture all substances the ACMD has dealt with to date. Also, I would have thought that adding an inclusion list to the definition of psychoactive drugs would make it easier to manage an exclusion list, as well as helping on the resources required for that.

The Minister will see that I am genuinely struggling on this: we all want the legislation to work, but unless the definition is strengthened and underpinned with ways of testing psychoactivity, the Bill might not result in successful prosecutions or controls. What response does he have to the difficulties I have outlined? If he will not accept the amendments, will he give this matter full consideration before Report and Third Reading?

These are not party political concerns but concerns that emanate from a desire to see this Bill have a proper effect and safeguard all our communities. I genuinely believe that we do not have this matter right as yet, because major loopholes might emerge as attempts are made to prosecute the producers and suppliers of these pernicious drugs.

I now move on to the issue of proving that a substance is psychoactive. I am sure that the whole Committee is aware that the ACMD has written to the Home Secretary warning her that we will have to rely on proxy measures of psychoactivity, such as in vitro neurochemical tests, to prove psychoactivity, and again these tests “may not stand up” in court. It could result in a very resource-intensive forensic strategy and legal costs could well rise due to the need for expert witnesses, who obviously may disagree with each other. In vitro tests—that is, tests carried out in glass test tubes—are not conclusive and some substances that seem to be psychoactive in a test tube have been found not to be psychoactive in vivo, that is in humans. A conclusive test of psychoactivity would require randomised tests on human beings for definitive proof, and obviously that is fraught with difficulties.

I suggested on Second Reading of this Bill that we should take the ACMD’s warnings seriously. There have been only five prosecutions in Ireland since similar legislation was introduced in 2010. Police in Ireland admit that one of the reasons that there have been so few prosecutions there is that it is difficult to prove psychoactivity. Detective Sergeant Tony Howard from the Irish Drugs and Organised Crime Bureau told the BBC:

“We are relying on scientists to assist us with these prosecutions and, unfortunately, they haven’t been able to provide the evidence to us.”

We need assurances from the Government that they are making good progress with the ACMD in resolving this issue. Without the credible threat of prosecution, it will be much harder to disrupt and break up the supply chains.

Amendment 43, which I remind the Committee is based on an ACMD recommendation, would define a psychoactive substance as

“a compound capable of producing a pharmacological response on the central nervous system or which produces a chemical response in vitro, identical or pharmacologically similar to substances controlled under the Misuse of Drugs Act 1971”.

It is my understanding that one of the benefits of this definition is that it would be harder for defendants to challenge proxy evidence of a substance’s psychoactivity, because legally psychoactivity would be defined by proxy indicators. It is important that the Minister outlines why this wording would not be more legally robust than the current wording, because psychoactivity is, after all, right at the heart of the Bill.

If the definition of psychoactivity is limited to the known drug groups, we know that the resources required would be more manageable, and a series of simple biological tests could be done on known targets to indicate the drug group of a substance. According to chemists and toxicologists, this is

“run of the mill profiling”.

Thus, a library of known compounds could be built up and additional testing would only be required where the law was challenged. Leading chemists, including Professor Les Iversen, assure us that it is highly unlikely that new substances will be found that fall outside the known drug groups. If the Minister cannot accept the limitation to known drug groups, I would appreciate his telling the Committee why that is and outlining his difficulty with such a limitation.

Finally, I will move on to the issue of resources needed to test for psychoactivity. The Government will recognise that the proposals in the Bill are not immediately cost-neutral. As we have already seen, this clause gives rise to the need for neurochemical tests in order to prove the psychoactivity of substances. These tests need to be paid for, presumably both by the prosecution and defence teams in any court case. The Forensic Science Service, a public body, was abolished in 2011 and what we now have is a patchwork collection of commercial forensic science providers.

Carolyn Harris (Labour, Swansea East)

With some laboratories charging up to £100 per test for each individual product to be tested, would my hon. Friend agree that trading standards would need extra financial resources to make any future legislation viable?

Lyn Brown (Labour, West Ham)

I certainly agree with my hon. Friend. The expert panel on new psychoactive substances make it perfectly clear that those forensic science providers will only take on the work if they consider it commercially viable. The state will have to pay competitive rates if it wants to test for the psychoactivity of drugs. I would like the Minister to assure us that the burden of paying for these tests will not fall entirely on the prosecution services or local government. The Bill is a radical addition to our drugs control policy and the Home Office has a responsibility to ensure that it is not acting as a drain on already depleted resources at the CPS. Local authorities and police forces may also want to test for psychoactivity before pursuing action against local suppliers. They too need support in this area.

In the Home Secretary’s letter to the ACMD she argued that data sharing in the police and forensic community would be the key factor in the forensic response to the Bill. She also pledged that the Home Office would drive for the mechanisms to ensure data is shared efficiently. I would like to ask the Minister what progress is being made on this front. We do not want unnecessary duplication adding to the expense of enforcing the Bill, nor do we want prosecutions not be brought because prosecutors do not have the same knowledge of a psychoactive substance as a police force or indeed the Home Office.

The Home Affairs Committee report on the Bill highlighted a number of concerns regarding the expenditure needed to achieve a prosecution. The Chartered Trading Standards Institute argued in its written evidence to the Committee that proving psychoactivity in order to gain prosecution would require

“rigorous scientific testing and analysis to obtain a toxicology report detailing the specific chemical components found in the drug.”

That point was made earlier by my hon. Friend the Member for Swansea East. The CTSI estimated that the approximate cost would be greater than £100 per substance to conduct a basic test. What is more alarming is that typical head shop investigations will require multiple tests to be conducted due to the content of NPS being different in different packets of the same branded drug. One packet of something exotic bearing the same name as another packet will contain different compounds. That just will not stand up in court.

Owen Thompson (Scottish National Party, Midlothian)

A Scottish Government expert review group that reported in February this year included a recommendation that a toolkit be developed to support trading standards staff tackling NPS in our communities. Does the hon. Lady agree that it would be particularly useful to roll that out, so that we can ensure the best possible approach, consistent across the country?

Lyn Brown (Labour, West Ham)

The hon. Gentleman is absolutely right that data sharing across police forces is essential to ensure we get the right information and can prosecute cases where possible. Police Scotland has voiced similar concerns, stating that a successful case would require evidence from a qualified expert with experience of working with NPS who could identify the substance and prove its psychoactivity. Furthermore, Police Scotland also states that every case that involved NPS offences would require the suitably qualified medical expert to provide evidence in court, which would also incur a cost.

The critical issue in the Bill—the definition of psychoactivity—still has to be addressed, although I suppose there might be something in the letter that has been submitted to the Committee. The ACMD published further advice on 23 October and is still of the view that

“the current definition on the face of the Bill is too unspecific and does not adequately define a psychoactive substance”.

Essentially, the Home Secretary has rejected any qualification of psychoactive substances—for example, by including only synthetic products. The definition in clause 2 remains as originally drafted, without reference to harm, to which we will come later.

Much of the detail of the Government’s discussions has not been published, so the reasoning behind their position is not entirely clear to me. They have not accepted any suggested amendment to the wording of clause 2. It is unfortunate that there has been no agreement between Ministers and the statutory body of expertise, the ACMD. I fear that that risks destabilising the overall soundness and public perception of the proposals, by which I mean the ability to prosecute successfully. If the definition remains largely unchanged, there will be consequences relating to harm measurement, proportional sentencing and credible messaging. If the criminal sanctions apply equally to substances of widely different harm thresholds, that will remove the possibility that sensible and honest messages about health harms can be created.

We tabled our amendments not to be difficult or party political but to try to secure clarification from the Government on the intended scope of the Bill. We need to know that they are certain that they can legally prove that a substance is psychoactive and secure prosecutions. We want to know what provisions they have made to ensure that the necessary funds and resources are available to conduct extensive and expensive tests for psychoactivity.

Mike Penning (Conservative, Hemel Hempstead)

I thank the shadow Minister for her detailed and extensive comments, which I take in the context in which they were delivered.

I want to address some of the points that were made. The SNP spokesman mentioned the idea of a toolkit—we do not need to reinvent the wheel every time, do we? In England, local authorities, which have responsibility for public health, spend £830 million a year on tackling drug and alcohol misuse. That is 30% of the national budget, which makes it logical to address the issue.

The explanatory notes set out that the measures will be cost-neutral to the police and local authorities. Let me use some anecdotal evidence to show why. Take, for example, Belfast and Lincoln, two very diverse communities where head shops were banned using local powers. I still do not understand why other local authorities have not used those powers, but there we are. The cost and type of policing in those communities changed dramatically, without the Bill, just by banning head shops. Belfast, which I know all too well from my time as a Minister in the Northern Ireland Office, was transformed simply by people saying, “We do not want that sort of product sold in shops in our communities because people will think it is legitimate and safe.”

I understand that there are concerns, and I know that there are different views coming back from the Republic of Ireland. I went and met the Irish Minister and his scientific experts. I asked why there had been five prosecutions, and the answer was twofold, and not exactly what we have heard so far today. In Ireland, they felt that they had got the prosecutions they wanted using powers that are also in the Bill. A huge part of the Bill has nothing to do with the CPS and the police prosecuting, but is about local authorities. What happened almost overnight after using those powers was that the head shops and the industry collapsed, because people had been educated correctly. Where the local authorities were using their powers—powers that are also in the Bill—it transformed the communities in the way we would all like to see. The Bill is not designed to pick on people who have been using these products perfectly legally and, they feel, safely; it is designed to get the really bad guys—the dealers and those sorts of people. The seven-year prison sentence is in the Bill as a last resort.

In terms of applied science and technology, the Home Office will identify and bring forward the capability throughout the UK on the forensic requirement. We are going to do that. I accept that we will have to give more detail, perhaps on Report, and we are happy to do so.

I am sorry we disagree so early in the Bill, but I have real concerns about amendment 51, which runs counter to the blanket ban. If we are going to go for a blanket ban, we are going to go for a blanket ban. If we start fiddling around the edges, that blanket ban becomes difficult, so I do not support the amendment. I fully accept the fact that the shadow Minister and other members of the Committee have not had enough time to read the ACMD’s latest correspondence. Perhaps that can be addressed on Report. The ACMD understandably moves with debate, as it moves in different areas. As I said earlier, using “synthetics” in the Bill is wrong. A blanket ban is a blanket ban. We have to get ahead the game, and that is what we have been trying to do.

I fully understand why the amendments have been tabled, and that the one from the hon. Member for Midlothian is probing, but sadly at this stage I cannot support amendments 51, 43 and 44 for the reasons I have given. If more discussion and investigation is needed, the Report stage may be a better time for that. A lot of the concerns are that we will not be able to prosecute, but we will. It happens in other parts of the world and in Ireland. There were concerns about harm, but if a blanket ban happens, we are ahead of harm, rather than waiting for harm to happen and for people to die. On that basis, I hope that colleagues will not press their amendments to a Division.

Lyn Brown (Labour, West Ham)

I hear entirely what the Minister is saying, and I have some sympathy, but may I push him on a couple of things? The first is the issue of the definition. I did not hear him explain why we cannot use the words “new” or “synthetic”. That would give us a better focus on the things we want to ban. Secondly, I did not hear why we were not able to put the organic substances that we know to be harmful, such as salvia and kratom, within the scope of the 1971 Act. That just seems logical. We know that those substances are harmful and we know what they are. People will not be able to graft new bits on to plants to create new organic substances—certainly not at the rate at which they have managed to create new synthetic substances.

The Minister talked about costs. I used the words “immediately become cost-neutral” in my notes, but I say gently to him that while I accept that there may be savings to the local community and the local police from banning head shops, cutting the supply and getting rid of the demand from our streets, I genuinely do not believe that those savings will be immediate. I gently suggest that one reason why there have not been more prosecutions by local authorities is that they have not had the wherewithal—the finance— to know that what they are taking to court will actually stand up. There is a cost issue that we need to look at.

Again on cost, if we are going to bring more prosecutions—and I suspect that England, being a bigger country, might want and need to see a few more than the five in Ireland—we do not want them to be thrown out of court because we do not have the scientific evidence to enable the CPS to take people to court and stop the supply of that drug. If I conclude at this point will I be allowed to speak again, Mr Howarth?

George Howarth (Labour, Knowsley)

If the hon. Lady has further points to make, it might be advisable to make them at this point.

Lyn Brown (Labour, West Ham)

My problem is that it was such a big thing that I did with three clauses that I am worried that I have missed something and I am not getting it out. I am not sure we have got to the bottom of the evidence around psychoactive substances, whether it is provable, and whether the definition that the Government are currently going with would enable provability within the court.

George Howarth (Labour, Knowsley)

I wonder whether it would be helpful to the hon. Lady, and sensible at this point, if the Minister responded to the points that she has made. If she thinks of other issues that she wants to raise, she could do so by way of an intervention.

Lyn Brown (Labour, West Ham)

I am grateful, Mr Howarth.

Mike Penning (Conservative, Hemel Hempstead)

I do not want to go round in circles, as I have made the points that I would almost certainly make again. At this point I would like to make some progress. “New or novel” substances have, according to my legal team, no legal meaning within the law, which is why we are not going with that.

Lyn Brown (Labour, West Ham)

Okay.

Mike Penning (Conservative, Hemel Hempstead)

Ireland is a much smaller country and, if we proportionally move the percentage in population up from 5%, we would see substantially more prosecutions. I am really pleased that I went to Ireland as I was amazed at the amount of work done by local government on prevention. One reason why the measure will not come into force until April is to allow what happened in Ireland to happen here. Prosecutions did take place and were not thrown out of court; the evidence base was almost identical to what we have. We are slightly tougher, but only marginally, and perhaps learning from some of the mistakes. They have said they will probably follow us and our legislation going forward, which is exactly what New Zealand and Western Australia are doing as well.

We have to be careful not to pre-empt something that might happen but which has not happened in countries where measures have been taken. I am conscious that the measure needs to be tight and a blanket ban is needed. I am happy and confident that we will have the scientific evidence and the experts out there to make sure that we can do this. Let us hope that, before the legislation comes in, and as they did in Ireland, we get into the schools, we get into local government and talk to communities, and that we get programmes out there that we will all support to make sure, categorically, that everybody is aware not only that the substances are no longer legal, but that they have definitely never been safe and, by the way, there are severe penalties for importing, manufacturing or selling these products.

Lyn Brown (Labour, West Ham)

I am grateful to the right hon. Gentleman for clarification on the words “new or novel”. That is the first time I have heard that they might not have a legal standing as a definition. May I push him, therefore, on the definition and ask if he is confident that the definition in the Bill will be robust enough for us to deal with provability within a court? Secondly, may I ask him to address the issue of cost?

Mike Penning (Conservative, Hemel Hempstead)

The answer to the first question is yes; I am more than confident about that. As the explanatory notes say, the CPS is responsible for the costs in prosecution terms. We do not think that will be an enormous burden. I am responsible for 43 police authorities, and the costs of policing this type of problem in our communities is huge. Public health is obviously for local authorities. I used to be shadow Minister for public health, and the cost burden is very interesting. We have seen in Ireland that the number of people who turn up to A&E has dropped dramatically. The number of people needing rehabilitation and treatment has also dropped. Those are all cost negatives.

Andrew Gwynne (Labour, Denton and Reddish)

The Minister makes an important point on the costs, which are borne not only by the Home Office and the budgets he is responsible for but across Departments and within local government. He will know that although Public Health England is responsible for some public health functions at a national level, a lot of the budgets have been top-sliced and devolved to local government. What discussions has his Department had with colleagues in the Department for Communities and Local Government and the Department of Health to ensure the kinds of education programme he talked about are up and running from day one? That will be a crucial element.

Mike Penning (Conservative, Hemel Hempstead)

The shadow Health Minister makes an important point. I chair a newly formed inter-ministerial group that includes Ministers from the Departments he alluded to and others, such as the Department for Business, Innovation and Skills, as well as Ministers from the devolved Administrations. We are treating this issue not just in England and Wales but in Scotland and Northern Ireland too. He is absolutely right that Public Health England has responsibility for part of this. Most of public health has been devolved, with £830 million going to local government. Obviously, local government has priorities. However, with 30% of its budget being spent on tackling drug and alcohol misuse, it is pretty obvious what those priorities should be. As chair of the inter-ministerial group, I will be pushing on that.

Owen Thompson (Scottish National Party, Midlothian)

I beg to ask leave to withdraw the amendment.

Clause 3 - Exempted substances

Lyn Brown (Labour, West Ham)

I beg to move amendment 45, in clause 3, page 2, line 14, at end insert—

‘(3A) The Home Secretary must consider making regulations under subsection (2) if she receives a recommendation from the Advisory Council of Misuse of Drugs to bring forward such a regulation in respect of a psychoactive substance.”

Mike Penning (Conservative, Hemel Hempstead)

I think there is a very important debate to be had on poppers. That will be the Chair’s decision when we get to poppers—however, at the present time I did not realise we were talking about poppers.

George Howarth (Labour, Knowsley)

To be fair, the hon. Lady has already accepted that that is a subject for further debate.

Mike Penning (Conservative, Hemel Hempstead)

I was trying to help.

Lyn Brown (Labour, West Ham)

I like help, so do not stop trying to help.

I admit that I am sympathetic to the SNP’s amendment. If the ACMD, through Professor Iversen’s evidence, is suggesting that poppers pose a low risk of harm, it would be within the scope of the Bill to place poppers on the exemption list—but I am not an expert.

John Woodcock (Labour/Co-operative, Barrow and Furness)

I am a little puzzled. Perhaps the shadow Minister or members of the SNP might be able to shed light on this. Why, exactly, is the Scottish National party putting forward amendments about poppers that would, presumably, have an effect in England but not in Scotland itself?

George Howarth (Labour, Knowsley)

I am sure that the hon. Gentleman is trying to be helpful with his amendment, but as has already been indicated, there will be a separate debate on that.

John Woodcock (Labour/Co-operative, Barrow and Furness)

Okay. I will raise that question again when it comes up.

Lyn Brown (Labour, West Ham)

When we get to poppers, experts will need to assess the evidence and decide whether the case for exemption has merit. If I may link this to our discussion on the second clause of the Bill, we know that there will be significant costs in testing the psychoactivity of substances, as there will be for enforcement measures contained within the Bill. By introducing a charge on applying for exemption, the Government potentially could raise the revenue and ensure that what is left of the industry pays for its own regulation. Does the Minister think that there might be scope for that?

While we are discussing exempted substances, I want to raise a concern that is pertinent to schedule 1. Paragraph 1 of schedule 1 exempts those drugs that are controlled by the Misuse of Drugs Act 1971 from the scope of the Bill. That is appropriate, because we do not want suppliers of drugs that we know to be very harmful being subject to the lesser tariffs contained within this Bill, rather than those in the 1971 Act. As the Home Secretary herself has stated, the 1971 Act must remain at the apex of our legal controls, and this Bill ought to be considered as complementary.

I want to press the Minister to ensure that part of this legislation will not slow down the process by which NPS we know to be harmful are brought under control through the Misuse of Drugs Act. It seems that there is a danger that the impetus for action will be lost, given that this Bill will provide some measures of control of new psychoactive substances. I do not want to see a time gap between a dangerous drug hitting the market and finding its way on to the controlled substance list as a result of this legislation—particularly given the lower tariffs contained within this Bill for supply. My worry would be greatly eased if the Minister resolved to ensure that this issue is included in the Home Office’s statutory review of the Bill.

In conclusion, the capacity to exempt substances from the controls introduced by this Bill is clearly central to the Bill’s receiving widespread support. The focus of the Home Affairs Committee report on the issue of poppers has already made that clear. I hope that the Minister will give serious consideration to our amendment or to other ways around the problem. I look forward to being able to offer a reassuring response to my concerns about the relationship between this Bill and the 1971 Act.

Owen Thompson (Scottish National Party, Midlothian)

I will be brief. In broad terms, the inclusion of the ACMD in the amendment would perhaps allow an opportunity for greater consideration to be given, not only to the chemical compound, but to the effect that a substance might have on an individual. I would certainly be broadly supportive of that and see merit in its inclusion, or at least we could see what could be brought forward through developing this as we progress to Report.

Mike Penning (Conservative, Hemel Hempstead)

I understand fully the shadow Minister’s concerns, but I hope I can alleviate them.

The Home Office greatly values the work of the ACMD. In my meetings, the chairman has been very helpful. The work has been going on for decades. Although we accept that clause 3 only provides for the ACMD to provide advice when asked, the relationship has always been two-way. The ACMD is not shy, and nor are we. Where the ACMD has had concerns in the past, it has come to us and we have dealt with them, and vice versa. Hon. Members have raised in the House issues to do with constituents, and we have gone to the ACMD. It has an ongoing programme of looking at what is out there and whether we need to move something into a different category. I can assure the Committee that that will not change in any way—far from it.

Recently, drugs that were classified as psychoactive have moved into a completely different regime.

John Woodcock (Labour/Co-operative, Barrow and Furness)

Does the Minister accept that there is a very significant shift in the burden of responsibility? He says the relationship works well at the moment, but the ACMD may now be judging whether something is a food, for example.

Mike Penning (Conservative, Hemel Hempstead)

I was about to come on to how we have looked at other parts of the world and how such changes occur.

Andrew Gwynne (Labour, Denton and Reddish)

I want to press the Minister a little on the issue of consultation and make sure that we get the Bill’s wording absolutely watertight. I fully accept his point of view that the way in which these things work is a two-way process, and that Home Office Ministers are open to receiving advice that perhaps they did not ask for from various regulatory bodies. However, the amendment that my hon. Friend the Member for West Ham has tabled would make it absolutely watertight in the Bill that it is a two-way process. My reading of subsection (3) is that the Secretary of State must consult the ACMD and other such persons as she considers appropriate before making regulations. However, there is nothing to say that the ACMD or others could come to the Home Secretary first and request that regulations are made. Our amendment would make that watertight.

Mike Penning (Conservative, Hemel Hempstead)

The shadow Minister would have a point if not for section 1 of the Misuse of Drugs Act 1971, which allows the council—or ACMD—to issue advice to Ministers when it considers it expedient to do so. That provision is in the Act. A protocol between the Home Secretary and the ACMD allows the council to consider drug issues without any advice from us at all. That is in the Act.

Lyn Brown (Labour, West Ham)

The issue that we are trying to push is on exemptions.

Mike Penning (Conservative, Hemel Hempstead)

We will come to that.

Lyn Brown (Labour, West Ham)

Okay, but we have tried to helpfully suggest that there might be a way of making this a cost-neutral thing with the industry, proving that a substance should go on to the exemption list because it is harmless. The Bill and the public’s acceptance of it will be strengthened if harmless substances are put on an exemptions list, as we have done with incense.

Mike Penning (Conservative, Hemel Hempstead)

That was looked at extensively by the expert panel before the legislation was introduced, and it was rejected. The panel looked particularly at New Zealand, which had already introduced a licence, basically, which is what we are alluding to—to people applying for a licence—for low-harm substances. That has not worked.

Lyn Brown (Labour, West Ham)

No, it did not work.

Mike Penning (Conservative, Hemel Hempstead)

No one has applied for a licence and there is basically a blanket ban. The experts, who are much more expert than I am, looked at it extensively. They examined it and rejected it and were happy with the way we are moving forward. With that in mind, I am more than happy—as I suggested earlier to the hon. Member for Midlothian—to look again at that between now and Report to make sure that I am 100% comfortable with the proposals, because I understand the hon. Lady’s passion for this issue.

Lyn Brown (Labour, West Ham)

I am grateful.

Mike Penning (Conservative, Hemel Hempstead)

However, at this stage I am comfortable, unless something comes forward between now and Report.

John Woodcock (Labour/Co-operative, Barrow and Furness)

What if a way of trying to circumvent the ban is similar to what has been practised by some people involved, which is to say, “This is plant food” or “a washing product”? What happens under that scenario?

Mike Penning (Conservative, Hemel Hempstead)

The Bill is quite specific, in that the seller of a product needs to make sure that the product is being sold legitimately—[ Interruption. ] Sorry?

John Woodcock (Labour/Co-operative, Barrow and Furness)

I am sorry to chunter from a sedentary position, but those sellers are not the people we are trying to stop. They are nefarious people who will try to get round the rules.

Mike Penning (Conservative, Hemel Hempstead)

Some of them are. Some of them are genuinely and legitimately people doing business, for example, selling a certain gas that is inappropriately used by other people, such as laughing gas. The Bill is specific in that area to make sure that we protect people. We cannot protect everybody who completely ignores what a label says, but if someone is selling certain products, they will get up to seven years in prison. That is why the harshness is there at that end of the scale, although I fully understand and do not want to penalise people at the other end, who perhaps take the products—in my opinion wrongly, and I am sure that everyone would agree—thinking they are safe. We do not want to criminalise that. I hope that the hon. Lady will not press her amendment. We can look at this carefully again, if necessary, on Report.

Lyn Brown (Labour, West Ham)

I am really delighted that the Minister has agreed to take this matter away and think again on exemptions and the two-way street with the ACMD. It is really helpful and I am very grateful.

George Howarth (Labour, Knowsley)

I take it from that that it is your pleasure that the amendment be withdrawn.

Lyn Brown (Labour, West Ham)

Therefore, Mr Howarth, I happily beg to ask leave to withdraw the amendment.

Schedule 1 - Exempted substances

Mike Penning (Conservative, Hemel Hempstead)

I beg to move amendment 3, in Schedule 1, page 38, line 7, leave out from “products” to end of line 12 and insert—

‘“Medicinal product” has the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 2 of those Regulations).’

George Howarth (Labour, Knowsley)

With this it will be convenient to discuss Government amendment 4.

Mike Penning (Conservative, Hemel Hempstead)

Hopefully, we will agree on this group of amendments and schedule. The amendments do not alter the Government’s objective, which has always been to exclude from the scope of the Bill approved medicinal products. I think we would all agree with that. With a belt and braces attitude, the Government listened to comments made during the Bill’s passage in the other place and recognised that our starting definition was incomplete; that is an example of the Government listening. The Home Office has worked extensively with the Department of Health and with the Medicines and Healthcare Products Regulatory Agency over the summer to revise the exemption.

Amendment 3 will have the effect of exempting all medicinal products as defined in regulation 2 of the Human Medicines Regulations 2012. We are confident, as is the Department of Health, that this well-established definition will exempt medicines from the scope of the Bill.

That is a short comment, but it is a good example of working cross-departmentally and with the other place to address something that we accept was incomplete, which is what Committee stages are for.

Lyn Brown (Labour, West Ham)

I rise to speak to Government amendments 3 and 4, which would replace the passages on investigational, homeopathic and traditional herbal medicine in the list of exempted substances with a single wide definition of a medicinal product. Will the Government provide further detail on the exempted substances list and the forensic strategy that underpins the Bill? Some representations, including from the ACMD, have described the exemptions list as potentially unworkable, particularly if there is no inclusion list in the definition of psychoactive substances, as recommended by the ACMD. It is possible that adding an inclusion list into the definition of psychoactive substances makes the management of the exclusion list much more manageable. I would be grateful for the Minister’s view.

Mike Penning (Conservative, Hemel Hempstead)

I am really sorry if I am looking slightly puzzled, but I did not think that we were considering these matters at the moment. I will get some notes passed to me, a service which the hon. Lady does not receive. I am puzzled.

George Howarth (Labour, Knowsley)

Order. We need to have a debate about the specific amendments to schedule 1. There is scope for a stand part debate on the schedule, at which point the hon. Lady might find her comments more—

Mike Penning (Conservative, Hemel Hempstead)

On a point of order, Mr Howarth. Would it be possible for the Committee to adjourn for a few minutes so I can powder my nose?

George Howarth (Labour, Knowsley)

At the Minister’s request, I suspend the Committee for five minutes.

George Howarth (Labour, Knowsley)

I remind the Committee that with this we are discussing Government amendment 4.

Lyn Brown (Labour, West Ham)

These amendments would replace the passages defining authorised, investigational, homeopathic and traditional herbal medicines in the list of exempted substances with the definition of medicinal products found in regulation 2 of the Human Medicines Regulations 2012. I understand that the Government feel it redundant to explicitly exempt those types of medicine because they are covered by the new definition. The explanatory statement says that these medicines will fall within the revised definition. How certain is the Minister that that is the case? One reason the Bill has had wide support is that the Government have been explicit that herbal remedies will not be controlled. We must be sure that the redrafting has not moved the goalposts. I understand there is particular concern about the Government’s lack of expertise in eastern medicines that may be deemed psychoactive.

My other concern is that the 2012 regulations appear to offer a very broad definition of a medicinal product. They state that a product is medicinal if it is

“presented as having properties of preventing or treating disease”

or administered with a view to

“restoring, correcting or modifying a physiological function”.

I am not an expert on legal drafting, but both those phrases appear to suggest that whether a product is medicinal is subjective; it depends on how the drugs are presented or viewed, rather than what they actually do. I would like further details from the Minister on that point. We do not want a product to be classified as medicinal and exempted from the Bill just because someone claims it has medical or medicinal properties.

Mike Penning (Conservative, Hemel Hempstead)

I understand exactly where the shadow Minister is coming from. I have seen some of the representations, particularly on Chinese and Asian herbal remedies, and I do not think there is a real concern. The key to this is trying to get everybody to see the new way we are looking at these products within the blanket ban. Everyone seems to want a list of products, but we tried that, and we had to amend it 500 times. Frankly, it does not work. We are very confident about this, and I assure the Committee that we are satisfied the revised definition firms the legislation up. The definition includes investigational medical products, homoeopathic medicinal products and traditional herbal medicines. That is quite specific. I will look at it again between now and Report, but I am very happy that the drafting experts, who we all rely on, have firmed this up. I queried it myself, but I am happy today.

Andrew Gwynne (Labour, Denton and Reddish)

If it came to light in the review of the Bill’s measures that homeopathic medicines with certain psychoactive qualities were being abused and misused outwith the Bill’s functions, would the Minister look, maybe on Report, to change the regulations to ensure that those medicines are covered by the blanket ban?

Mike Penning (Conservative, Hemel Hempstead)

The Home Secretary’s powers within the Bill, should it become an Act, will enable us to ensure that sort of thing happens. I assure the hon. Gentleman that a close eye will be kept on all types of medicine. If what he mentioned was felt to be happening between now and Report, which I doubt, or as we go forward, there are powers within the Bill to make sure that those medicines are covered. I hope that alleviates his concerns.

Owen Thompson (Scottish National Party, Midlothian)

I beg to move amendment 56, in schedule 1, page 39, line 23, at end insert—

Lyn Brown (Labour, West Ham)

The amendment would specifically exempt poppers from the controls contained within the Bill. I am aware that the Home Affairs Committee, as the hon. Member for Midlothian stated, received plenty of evidence on the issue. It concluded that poppers ought to be excluded from the scope of the ban in the Bill. Organisations including the National AIDS Trust and the Gay Men’s Health Collective argued that harm from poppers was low due to the effective regulation of the compounds amyl nitrate and butyl nitrate. Not exempting poppers from the list of psychoactive substances would take the use of alkyl nitrates outside of any regulation.

Andrew Gwynne (Labour, Denton and Reddish)

My hon. Friend is right to talk about the health of gay men in particular. Is she as concerned as I am that one of the unintended consequences of banning poppers could be the use of harder drugs and the risk from that not only in potential mental health problems of those that are using them but also sexual health because of the heightened risk of unprotected sex and sexually transmitted infections?

Lyn Brown (Labour, West Ham)

I thank my hon. Friend for making that point. One of the arguments against poppers is also that it could adversely impact on the sexual health of those imbibing. That argument can be used both ways. My hon. Friend is absolutely right; the Home Affairs Committee is quite clear that if we do not exempt poppers that could lead to increased health harms.

Dr Owen Bowden-Jones, a consultant psychiatrist and lead clinician for the Club Drug Clinic at the North West London NHS Foundation Trust, stated:

“As far as I can speak as a clinician, I do not think I have ever seen anybody come through”—

our clinic

“with harms related to poppers”.

Professor Iversen of the ACMD also stated that the ACMD had not seen

“sufficient scientific evidence”

that would prove harm in the case of poppers

“to justify a recommendation under the Misuse of Drugs Act.”

He was also not aware of any growth in the use of poppers.

I had supper last night with my hon. Friend the Member for Rhondda (Chris Bryant), who told me that the long medical history of the former Member and Labour Foreign Secretary Ernie Bevin meant he took poppers around the Cabinet table quite regularly. Apparently, that was because his doctor told him he had no sound organ left in his 18-stone body apart from his feet, and the poppers kept him going.

George Howarth (Labour, Knowsley)

Order. As my son would say, that possibly falls under the category of “too much information”.

Lyn Brown (Labour, West Ham)

I take your advice, Mr Howarth.

Given the evidence published by the Home Affairs Committee on Friday, I am sympathetic to the SNP’s amendment, and I wonder what the Minister makes of the evidence. If the ACMD, through Professor Iversen’s evidence, is suggesting that poppers have a low risk of harm, it would be within the scope of the Bill to place poppers on the exemption list.

I repeat: it is quite clear that I am not an expert on drug taking or drugs. I hear there has been a change in the formula used for poppers, and that a trickle of new evidence suggests the new formulation causes damage to the centre of the retina. Although reports of visual loss are very rare, this underlines the fact that we need an established mechanism for approving exemptions, whereby representations can be made to the ACMD if it is believed that an exemption should be granted. Experts, not me, need to assess the evidence and decide whether the case for exemption has merit. Poppers ought to be subject to the same evidence-based process as any other drug. This debate and the discussion around poppers underlines the need for the sort of established mechanism that I called for in our debate on clause 3.

David Burrowes (Conservative, Enfield, Southgate)

It is a pleasure to have the opportunity to contribute to this debate on an extremely significant and welcome Bill. I plead guilty to being a member of the Home Affairs Committee, which made these recommendations. I have had a number of conversations about issues around poppers, although I have never been a particular expert or had the benefit of having dinner with the hon. Member for Rhondda to discuss the issue of poppers in any great detail. I have, however, met with a representative from the Clonezone chain of sex shops, who made the case for having poppers properly regulated and in the open, as well as Boyz magazine, which has expressed concerns. Will the Minister indicate what evidence he has received from the gay community on this issue?

I will not repeat the evidence that the Home Affairs Committee heard, as the points have been well made. The issue is recognising the present harm level. I do not want to interfere in this morning’s debate, as I was not there, but the definition in the Bill is a blanket ban. One has to weigh up the impact of an exemption of alkyl nitrates on the blanket nature of the ban and the precedent that would set.

The case that was made to the Home Affairs Committee and that has been made to me is that we are now in a position where poppers are properly regulated and controlled, not least by the gay community itself. Previous concerns about harm and abuse in relation to poppers were relevant when poppers were compounds, and there were some tragic incidents involving other drugs being combined with poppers. The gay community makes the case that as far as its activities are concerned, poppers are best in the open and not banned.

The wider issue, which has not been mentioned before, is proportionality and where the focus of the Bill is. I think we all agree that those who consume poppers for personal use—we will come on to importing and exporting in a subsequent debate—are not the main target of the Bill. At the very least, we need to look at the focus of enforcement regarding the psychoactive substances that are on the market, and we all agree that it should be on the bad people who shift their evil trade around. Even if the Bill is enacted in its present form, I suggest that those who consume poppers in their private domain will not be a particular target of enforcement activities.

Lyn Brown (Labour, West Ham)

Does the hon. Gentleman agree with me—I think he does, because he has said that people who consume poppers are not the target of the legislation —that we are looking at targeting drugs that do a lot of harm? I am anxious that we will spend resources going into clubs and arresting people who have poppers on them, which will look good on the stats but will not take off the streets the drugs and the people that we want to target through the legislation?

David Burrowes (Conservative, Enfield, Southgate)

We will have the benefit of a 30-month review, where we will be able to look at the impact of the legislation. We need to ensure that it gets on to the statute book so that it can arm the police to get out there and find the people whom we really want to focus on. I cannot believe that those with poppers will be the main focus. We can ask that question in 30 months’ time to, I hope, reassure ourselves. This debate will help with that, and perhaps the Minister will give us some reassurance as well.

How will this be dealt with practically and properly? I hasten to say that those who consume poppers have not so much to fear; it is the people who shift the new psychoactive substances around in bulk who are causing menace. I look forward to the Minister’s response, in which I hope he will outline the evidence that the Home Office has received about the harm caused by poppers, because he has expressed real concern to the Committee about such harm.

Mike Penning (Conservative, Hemel Hempstead)

May I touch quickly on the comment made by the shadow Minister in her intervention on my hon. Friend? Possession in a club would not be an offence; indeed, possession is not an offence under any part of the legislation, unless in a secure facility. It is important to send that message out.

The Bill is in no way intended to pick on or cause problems for any individual group in society, but we are looking at a blanket ban identical, or as near as damn it, to what was done in the Republic of Ireland, where poppers were also banned. I looked carefully at the evidence to the Select Committee, particularly the comments of Dr Owen Bowden-Jones, who said—I believe that the shadow Minister touched on this—that there are harms associated with poppers.

I think that the situation is the reverse of what my hon. Friend has said. There are new types of products and poppers coming into the market in this particular nitrite area, which is starting to cause problems. We can look at, for instance, death certificates on which alkyl nitrites have been named, and we see that from 1993 until the latest data were released, there were more than 20 deaths. How people take poppers—a trade name that we all seem to have adopted—is interesting. We have had instances of people with burns who have drunk or ingested them, and there is evidence around damage and deaths. That is a debatable thing, because there are lots of experts out there, but the principle of what we are trying to do is not to have exceptions. As my hon. Friend has rightly said, what we can do is to review the situation in 30 months. At this stage, we are looking at a blanket ban without exceptions. I am only quoting from the pieces of paper in front of me, and I know that there was much more detailed evidence given to the Select Committee.

Andrew Gwynne (Labour, Denton and Reddish)

Surely the Minister would accept the words of the Home Affairs Committee report, which are quite clear; it says that poppers were

“‘not seen to be capable of having harmful effects sufficient to constitute a societal problem’ and therefore we recommend they should not be banned.”

That could not be clearer.

Mike Penning (Conservative, Hemel Hempstead)

I accept the point. I know exactly what it says. I beg to differ with the report and the work that was done by colleagues because of the principle of the blanket ban. If we have exemptions, what other types will be brought forward by others at other times? The principle of the blanket ban would be affected if we accepted the amendment, so I ask the hon. Member for Midlothian not to move it, or to withdraw it. Other Members may of course pursue that.

I have one final point to make. I am conscious that presumably—although we will wait for the business managers—we are not going to have a huge amount of time on Report. If we leave too much to Report, I am conscious that we might not have the time to debate the issues that we have already agreed to in the length of time available.

Lyn Brown (Labour, West Ham)

The Minister says that possession is not an offence. We are going to come to clauses later where I want to probe that. One of the issues around clubbing is that one person out of a group of six may well find themselves getting the poppers for the group and then doling them out to the group when they get to a club. In those circumstances, because there would be an “intent to supply”, the possession of poppers would be an offence. However, again, that is about using resources on something that has not been shown to have a harmful effect or to cause harm.

The Minister said that he wants to review, and in the review we can look at whether poppers have been particularly targeted. Can he confirm that when we get the review it will have a breakdown of which psychoactive substances action has been taken on? The issue is again that of resources. To show that action has been taken on psychoactive substances by any particular police force, it would be quite easy to take action on those who are using poppers. I want the action taken on those who are selling really harmful substances, not on the type of substances where the Select Committee’s report suggests there is no evidence of harm. Can the Minister confirm that in that review we will be able to see the types of substances that police forces have concentrated on when they have been taking action?

The Minister also talks about a blanket ban. We have a blanket ban but we also have an exemptions list. We have an exemptions list that includes incense, and coffee—I am grateful for that as I am not sure how I would have managed to get up this morning without it. When we are talking about a blanket ban, we want that to be on harmful substances—substances that cause harm, not substances that do not harm. Would the Minister consider publishing the evidence he has that poppers have entered a realm where they may well be causing harm? That would be helpful.

I think this will be revisited at Report; if not by either of the Front Benches, my guess is that there will be others who will have been moved by the letters and emails that they will be getting over the next week or so, who have perhaps been part of the Home Affairs Committee and are aware of the Committee’s recommendation that this is placed on the exemption list. Could I ask the Minister to genuinely reconsider on this issue? It is not that we are soft on drugs. We are hard on drugs and we want to be hard on the harmful drugs that could cause massive harm to many within our communities. Will the Minister take that on board?

Mike Penning (Conservative, Hemel Hempstead)

I assure the shadow Minister that in the evidence I send back to the Select Committee on that report, I most certainly will indicate the concerns that we have around harm to do with poppers.

The blanket ban is not targeted, because it is a blanket ban. It is obviously for trading standards, the police and the Crown Prosecution Service to make the decisions. When we come to the review, data will be available to ensure that we understand how the new Act is being implemented.

Andrew Gwynne (Labour, Denton and Reddish)

I have two points. First, I wonder whether the timescale for the Minister’s responding to the Home Affairs Committee will coincide with further debates we may have on the issue on Report. It would be convenient to have the Minister’s response in time for such debate.

My second point is about unintended consequences. Does the Minister not accept that if people cannot buy poppers in shops, in a legal format, there is a risk that they will go underground and purchase them from drug dealers, which might be a gateway into harder drugs, because the dealers will want to push more than just poppers?

Mike Penning (Conservative, Hemel Hempstead)

I will answer some of those points if I can at this stage. Yes, I will respond to the Select Committee before Report. I am not part of the business management system, but it does not look like we will have reached that stage by next week, so we will have some time. The Committee knows that I have been wanting to expedite the process.

On the second point, the evidence from Ireland, where poppers are banned, shows that that is not the case, and I am sure that the gay community is the same in Ireland as it is here. Interestingly enough, I raised the matter with the Irish Minister when I was with him in the Republic, and he said that it had not been an issue for them or caused major problems. In fact, he was surprised that I raised the matter.

David Burrowes (Conservative, Enfield, Southgate)

Will the Minister give way on that point?

Mike Penning (Conservative, Hemel Hempstead)

May I just finish responding to a couple of the other points? My brain will not work well enough to remember them all.

We will, of course, look at the issue of harm. Interestingly, we are all quoting different people. I have quotes from some professors. In addition to Ireland, other countries, including America, Canada and France, are also attempting to put some kind of ban in place. I am conscious that we do not want to be seen to be picking on any individual group in any shape or form. I fully understand that. But if we are trying to protect the public it is difficult to start to have physical exemptions in the way that has been described.

David Burrowes (Conservative, Enfield, Southgate)

Will the Minister tell us what level of concern has been expressed to him by the gay community?

Mike Penning (Conservative, Hemel Hempstead)

I was just coming on to that. When the Bill was going through the Lords I expected that the matter would be debated and extensively lobbied, but it was not. I understand that it was not raised at all. I also expected my door to be bursting open following requests for meetings from the different lobby groups, but I have not received any delegations. I am slightly surprised. One of the Justice Ministers raised the matter when a group was seeing them on a separate issue. I am well aware that colleagues were lobbied when they were named as members of the Committee. However, if the matter was of such concern, I would have expected representations, but I have not had any, and I am not the shyest person if people want to see me.

That is not a criticism. It is just that the question was asked and the answer is that I have not had any representations.

Lyn Brown (Labour, West Ham)

I know that this is not scientific, but my Facebook pages had not included anything about the matter until the end of last week. Perhaps the Minister’s door has not yet been knocked on, but my guess is that it might be knocked on, fairly loudly, by those groups as the issue becomes more apparent and the community becomes more aware of it.

Mike Penning (Conservative, Hemel Hempstead)

Possibly, not least because of what I have just said.

Lyn Brown (Labour, West Ham)

Indeed.

Mike Penning (Conservative, Hemel Hempstead)

I have made a rod for my own back but, as I said, my door is always open.

The news that we were going to have a blanket ban is not new; everybody has known about the ban. Several other organisations, including the Churches, were worried about this issue. It has been debated extensively within the Lords. I accept that there is now a campaign on this issue, which seems to have started quite vigorously, but during the progress of the Bill in the other place and throughout the investigations that I have carried out, it was not raised with me.

Lyn Brown (Labour, West Ham)

May I just say to the right hon. Gentleman that I think one of the reasons that the issue was not raised with him is that there has been an assumption that the legal highs that we are banning are the bad stuff—the materials that actually cause harm? Therefore, there has perhaps been an assumption that poppers, which do not cause harm or at least have not been considered to cause harm, would not fall within the scope of the Bill.

Mike Penning (Conservative, Hemel Hempstead)

The knowledge about poppers being part of the debate has been out there in the ether; it was actually partly discussed in Scotland, when the Scots carried out their review. It was certainly discussed when the Irish passed their legislation. It has been known, clearly, all the way through.

What I am saying, however, is that in what I am trying to do—I accept that this is a concern for individuals—this issue could be really difficult for this Bill. Of course, the substances that we are banning are not all the really horrible ones, and I am really genuinely worried that I would open up an opportunity for others to ask for exemptions in areas where we do not really want to have them.

I repeat what I said privately to the hon. Member for Midlothian, namely that I hope that people will understand that this process is about my trying to get a piece of legislation on the statute book that does the job we are asking it to do and that is not challenged in the wrong way.

Owen Thompson (Scottish National Party, Midlothian)

I hear what the Minister is saying. However, it is one thing to say that there is reassurance for individuals who may take poppers, but how do they actually get them if we do not have an exemption for poppers? If we cover poppers in the ban that we are proposing in the Bill, they will become illegal and then those who would not be criminalised by using them cannot actually get them through any legal means. [ Interruption. ] I hear the Minister saying regularly that there is a blanket ban, but it is a blanket ban with the exception of controlled drugs, with the exception of medical products, with the exception of alcohol, with the exception of nicotine and tobacco, with the exception of caffeine, with the exception of food—

Andrew Gwynne (Labour, Denton and Reddish)

I appreciate that it is not proper form to respond to a Minister’s comment through a Member who is intervening on him, but if I were to do so I would point out that the Minister said from a sedentary position that that is not the experience in Ireland. Does the hon. Gentleman suspect that what might actually be happening in the Republic of Ireland is that people are going to Northern Ireland to purchase poppers legally, which they can then use themselves in the Republic of Ireland, and that might be why this has not been much of an issue south of the border?

Owen Thompson (Scottish National Party, Midlothian)

I would suggest that there are probably a number of ways in which any individual could acquire substances; indeed, that is part of what we will come on to next.

Mike Penning (Conservative, Hemel Hempstead)

Perhaps there is a sensible way forward, not least because the Select Committee report is fairly recent and many colleagues in the House have not had an opportunity to read it. Of course, if we do not vote on this measure now, it can then be brought back for the House, rather than this Committee, to decide. I have concerns as a Minister, not in a personal capacity. However, perhaps it would be sensible if we took some time and took some stock to consider the other evidence, and then the House can decide on Report.

Owen Thompson (Scottish National Party, Midlothian)

I would certainly welcome that approach. We have talked a lot about how we are building the Bill around the Irish experience, but I do not see any reason why we cannot look to that experience and make it better. I think that that is ultimately what we are all trying to do. I do not seek to press the amendment to a vote at this stage; I merely want us to make the arguments and discuss it, as we are doing. I will take the matter forward to Report, when we can discuss it in more detail. I beg to ask leave to withdraw the amendment.

Clause 4

Clause 5 - Supplying, or offering to supply, a psychoactive substance

Lyn Brown (Labour, West Ham)

I beg to move amendment 46, in clause 5, page 2, line 36, at end insert “for personal gain”

George Howarth (Labour, Knowsley)

With this it will be convenient to discuss the following:

Amendment 52, in clause 5, page 3, line 15, at end insert—

‘(5) It is not an offence under this section for a person (“A”) to supply a psychoactive substance to person (“B”), where A and B are known to each other and such supply is part of an agreement to obtain psychoactive substances for either As, Bs or both’s own consumption, and the supply does not profit person A.”

Lyn Brown (Labour, West Ham)

One of the original recommendations of the ACMD was that the Home Office should redraft clause 5 to exclude social supply, and that is what our amendments are designed to do. I note that the NPS expert group, which recommended a blanket ban, also stated that social supply could be excluded from that ban. The reason for this—we were heading in this direction in the last debate—is that I am told that it is not unusual for a number of young people to club together, and for one person to buy the substances and distribute them among their friends. The crime survey for England and Wales 2014-15 found that around a third—34%—of those using NPS got them from a friend. The reality of drug experimentation, particularly with young people, is that it is social behaviour in a group. It is common for one individual to acquire the substances to be taken by the group. I am of the view that the difference between a young adult purchasing drugs on behalf of a group for an experimental night out, and a professional drug dealer peddling potentially dangerous drugs for profit, is enormous.

David Burrowes (Conservative, Enfield, Southgate)

I hear the point that the hon. Lady is making, but how does she make that distinction? No one has the label: “I am a professional drug dealer” on their head. I have represented a number of drug dealers, and they may well be quite young and look very innocent, but they can be guilty of supply, whether social or commercial. Either way, they are plying their evil trade.

Lyn Brown (Labour, West Ham)

I accept that. I am not a learned person, and I have never defended a drug pusher, so I am quite new to this. My guess is that the way we would do this is to look at quantities—to consider the amount of drugs that somebody had on them and the group of people that they were clubbing with. If I had five poppers with me and I was clubbing with another four friends, I think that that would suggest that there was social supply going on, rather than a drug dealer making a huge profit.

David Burrowes (Conservative, Enfield, Southgate)

Is not the point that it is about enforcement and the police being able to take a view about what they find, so that they can decide whether the evidence amounts to supply and whether they want to take prosecution further? When they are dealing with the scenario you are describing of a bunch of friends passing round laughing gas, they would have to take a view on how far they would take it. We need to have that discretion in enforcement rather than putting it in the Bill, which could have unintended consequences.

Lyn Brown (Labour, West Ham)

I accept what the hon. Gentleman is saying. I think he was in the cannabis debate we had in Westminster Hall two weeks ago—[ Interruption. ] He was not; I am sorry. In that debate, I raised the issue of equity: somebody might be done for cannabis possession in West Ham but not in West Norwood, because police forces up and down the country take very different views about enforcement in their patch. It is about the way in which they enforce these matters. For me, the law is the law. I want equity across the country in the way in which things are dealt with; I do not see why there should not be equity across the country. I hope that helps the hon. Gentleman.

The clause as drafted makes no distinction between social suppliers and large-scale commercial suppliers. The ACMD is worried that that is disproportionate, and I probably agree. I know there is an argument that social supply is an important part of the supply chain of those drugs, and therefore it ought to be included within the reach of the Bill. Although Home Office research shows that a third of NPS were obtained through a friend or colleague, other surveys of young adults who are clubbers, such as the Global Drug Survey, have different findings that show a much higher level of internet buying of psychoactive substances.

Social suppliers are at the very end of the supply chain. I hope that this legislation, which I know we are going to pass, will enable us to disrupt and break up the immoral organisations that sell drugs to social suppliers: the head shops, the internet sites and, ultimately, the drug producers. We can reduce the social supply without criminalising young people who may not even be aware that they are breaking the law. A criminal record is one of the most harmful and life-limiting penalties we can levy on a young adult. A conviction for drug possession is not well regarded by educational institutions or potential employers. A conviction for drug supply has potentially far worse consequences, as it is rightly regarded as a much more serious offence.

Without a well-funded, comprehensive education and communication programme, there will be plenty of confusion about the legal status of NPS. It will take years to completely remove the dangerous marketing misnomer of “legal highs” from ordinary language. There is bound to be confusion about drugs that are legal to possess but not to supply, import or export, if only because they are new and unfamiliar to our legal framework. The same ignorance cannot be claimed for the drug pushers, professional drug dealers and producers who are the people we really ought to be going after.

Our amendment would add “for personal gain” to the end of the clause. That is similar to the way financial gain is considered an important factor in the sentencing guidelines for drugs controlled by the Misuse of Drugs Act 1971. Those guidelines suggest that those who make substantial gains ought to be considered, for the purpose of sentencing, to have played a leading role in supply. With that careful wording, prosecutors would still be able to prosecute individuals for selling to people they happen to know for the sake of personal profit. Small-scale, local criminals could still be punished for bringing harm to their communities, but genuine social suppliers, who are ultimately the users of the drugs, rather than the people pushing them, would be excluded.

We tabled amendment 49 to clause 7 to have the same intended legal effect as our amendment to clause 5. The same principles that govern the prohibition of supply, which is set out in clause 5, should also apply to possession with intent to supply, which is set out in clause 7. I note that the Scottish National party tabled a similar amendment, which also has the intended effect of excluding social supply from the scope of the Bill. I am quite happy to work with the SNP and the Government to work out which formulation would most effectively exclude social supply without creating easily exploitable loopholes. I firmly believe that we should be working on this problem together.

Steve Brine (Conservative, Winchester)

I am listening carefully to what the hon. Lady says. Is the “for personal gain” that she suggests should be inserted into clause 5 consistent with the wording that would appear in, say, the 1971 Act? Has she taken advice to that effect? I appreciate that she might not have the answer at her fingertips.

Lyn Brown (Labour, West Ham)

I certainly have not taken advice on that and I do not have that information at my fingertips.

Mike Penning (Conservative, Hemel Hempstead)

May I help the shadow Minister?

Lyn Brown (Labour, West Ham)

I am always happy to be helped.

Mike Penning (Conservative, Hemel Hempstead)

The provision in the Bill mirrors the position of substances that are subject to a temporary class drug order. The Bill replicates a piece of legislation that we have been using for some considerable time. The amendment would move us away from that.

Lyn Brown (Labour, West Ham)

But there are other things that are moving us away from that, too. The Bill does not talk about criminalising possession, so its focus is clearly on the dangerous, nasty stuff sold in glitzy, pretty packets in head shops, which are targeted at teenagers and young adults in our communities. We might not be mirroring the 1971 Act, but we are genuinely attempting to tackle the real problem of the nasty stuff on our doorsteps. We want to get to the suppliers and get this stuff out of our communities, but we should not criminalise young people who may be completely unaware that the “legal highs” that they have been taking are in fact illegal.

Andrew Gwynne (Labour, Denton and Reddish)

I am grateful to my hon. Friend for giving way. She makes an important point about personal gain, because there could be a scenario in which prosecutors would still be able to make a clear distinction for somebody who is clearly profiting from the sale of a currently legal high, even if they happen to know the person to whom they are selling on a social basis. That is an important distinction that prosecutors ought to be able to make.

Lyn Brown (Labour, West Ham)

I completely agree with my hon. Friend.

If the Minister cannot accept our amendments, I ask him at least to provide strong assurances that sentencing guidelines will be drawn up in a way that makes a distinction between social suppliers and suppliers for financial profit.

Steve Brine (Conservative, Winchester)

This is where I am on this: I understand exactly what the hon. Lady says, but one could intentionally supply a substance to another person socially and it could still be for personal gain, because they could still make a few quid out of it. Therefore, a prosecutor might struggle with that distinction. I am interested to hear the shadow Minister’s view on sentencing guidelines.

Lyn Brown (Labour, West Ham)

I think the hon. Gentleman is absolutely right. We need to be clear in this Committee about who we want to target most. If we can make that clear, we might stand a chance of the legislation producing more than just five prosecutions and making a real impact on the “legal highs” that are out there. We should be going after those who are flooding our communities with invidious substances and tackling the real cause of the problems on our streets.

David Burrowes (Conservative, Enfield, Southgate)

On personal gain, do we not also want to proportionately tackle people who supply laughing gas to friends at school? They may not be the big people who earn lots of money, but they may gain by being able to get themselves an extra bit of laughing gas or by feeding a habit. They are all part of this supply chain. I would not want my children to be exposed to suppliers, whether professional drug dealers or just people who shift out this bad stuff in schools.

Lyn Brown (Labour, West Ham)

I accept that. Had I been lucky enough to be a mother, I would be saying exactly the same thing. Nevertheless, the kids in school who are supplying the laughing gas are getting it from somewhere, often from someone who is also giving them other stuff that they want to have pushed in the playground and in the streets. I am glad to see that the Bill will tackle offences in schools that affect children. We have also heard that there will be a good and effective education programme that will help children to say no to whatever substances are being pushed. I am genuinely pleased to hear that.

Carolyn Harris (Labour, Swansea East)

Does my hon. Friend agree that we must also look at extending such measures to the vicinity of children’s homes where there are vulnerable young people, especially given the tendency for grooming to become the next stage in taking these hideous substances?

Lyn Brown (Labour, West Ham)

I understand that we will come to that later in the Bill with an amendment tabled by the hon. Member for Enfield, Southgate, who has been testing my thoughts on the legislation. I look forward to hearing from him on that.

As I have stated, a similar notion to the one I have been expounding already exists in the guidelines for sentencing under the 1971 Act. I would like to be assured that the Minister will work with the Director of Public Prosecutions to ensure that prosecutions are brought only when there is a clear public interest, which I would suggest there is not in the case of many social suppliers. I would find some reassurance in knowing that the Government will do what they can to ensure that the Bill is intelligently enforced.

Andrew Gwynne (Labour, Denton and Reddish)

It is a pleasure to follow my hon. Friend the Member for West Ham, with whom I agree that amendments 46 and 52 are so similar as to be almost indistinguishable. I very much hope that the Minister will consider adopting them.

I welcome this moment of harmony between Labour Members and our colleagues north of the border. Both amendments make a pertinent point: although it is right that the supply of existing drugs is considered an offence even if the supplier is not supplying them for personal gain, we should be very wary of criminalising those who are simply part of, say, a small group of individuals who have conspired to obtain psychoactive substances. That point was well made by my hon. Friend the Member for West Ham.

We are still in the early stages of controlling psychoactive substances. We should start from a presumption of ignorance for those not seeking to profit from the flow of such substances. My hon. Friend is absolutely right—I am sure that she does not speak from personal experience; she keeps protesting, so we will take her at her word—that the reality of drug experimentation, I am led to believe, is one of shared experiences. There is a qualitative difference between a group of young people procuring substances for shared use and a profiteer on the high street. The way in which clause 5 is currently drafted makes no distinction between those people and large-scale commercial suppliers; I have to say that that is just wrong. It is true that sometimes friends can be part of a supply chain, but they are right at the end of it. We should not, at this stage at least, impose a criminal record on a young person who gives some of these substances to their friends.

The Labour party is fully supportive of the principle of criminalising those who seek to make money from this pernicious trade. When someone is in the business of selling dangerous substances, we can assume they will be following developments regarding the illegality of their work, so I am firmly behind clause 5 in a general sense. Nevertheless, I urge the Minister to consider very carefully the fact that the amendment is intended to adopt a principle included in the 1971 Act: one of “personal gain”. Prosecutors could then still make a distinction regarding somebody who quite clearly profits from this trade, even if, as I said in an intervention, they happen to know the customer in a social capacity.

I note the reasoning behind subsection (3), and I approve of it. It must be made clear that the substance not being of a psychoactive nature is not a defence in itself if the supplier intimated that the substance would have such an effect, notwithstanding the fact that he or she would have no doubt trading standards on their case.

I urge the Minister to think carefully about this. The point made by my hon. Friend and, indeed, echoed by the SNP amendment is that we need to tread very carefully, so that we do not end up criminalising young people for the sake of it. We want to tackle the real issue, which is the supply of the psychoactive substances we want to ban.

Owen Thompson (Scottish National Party, Midlothian)

I very much agree with the comments from Labour Members. It is not the intention behind any measures in the Bill to target these small groups of people. The Bill is very much aimed at those who put these substances in the marketplace and on high streets on a larger scale. That is the reasoning behind our amendment. If there are drafting issues, it is surely not beyond expert drafters, of whom I am not one, to come up with a form of wording that encompasses the aims of the three amendments we are discussing, while countering some of the issues raised by Government Members.

Lyn Brown (Labour, West Ham)

Does the hon. Gentleman agree that the Government have opened the door to this by not wanting to prosecute possession? The Government themselves are therefore saying that they want to get to certain classes of pusher and of people involved in psychoactive substances, not individuals who just possess a drug.

Owen Thompson (Scottish National Party, Midlothian)

It largely comes down to another unintended consequence. We are not looking to target those individuals or small groups of friends, whatever the circumstances happen to be, who are not the object of the Bill. It is a question of how we capture that in a way that leads to successful prosecutions where necessary but manages to support people where it is not the mass-scale issues we have been talking about.

The amendment is a probing one. We will not push it to a vote, but I urge the Government to use it as an opportunity to seek an alternative and look at how best we can manage this aspect in a way that meets the genuine concerns raised by Government Members, while protecting young individuals who may find themselves charged with supply when, in fact, it is what anyone else would see as personal use.

Mike Penning (Conservative, Hemel Hempstead)

I fully understand what colleagues on both sides of the Committee are saying, but I have some real concerns. If we exempt a group—not because they are young; we keep saying that, but we are just old and they are all younger than us—we will open up a significant loophole in the Bill, not least because of what my hon. Friend the Member for Enfield, Southgate spoke about from personal knowledge. What is personal use? We have discussed that in lots of other areas. While I desperately do not want to criminalise young people, there is a whole set of measures in the Bill that will prevent us from getting to that position. That is why they are there.

I advise the Committee that some things that have been said are not quite factually correct. Supply does not need proof of payment under the 1971 Act, but proof of payment is a consideration in sentencing, which is exactly what we would look for in this measure. It is not for me to tell the Sentencing Council exactly what its guidelines should be. We have moved away from politicians doing that—it is now people who are much more expert than I am—but I have already committed to writing to the Sentencing Council once the Bill has completed its passage in order to advise it on the will of the House. We will return to that when we discuss children’s homes.

The range of proportionate, graduated sanctions allowed by the Bill, and the fact that we will keep a close eye on the sentencing guidelines, means that the really innocent ones should—that is an interesting word—not be caught up in the way outlined by the shadow Minister, but there would be a significant loophole in the Bill if we exempted a group. The questions of what is for personal use and what is supply for gain is a very dangerous area. The rest of the legislation does not replicate that, so it does not have to be about financial gain or other gain—there are gains other than financial. Sadly, I ask the hon. Member for West Ham to withdraw her amendment.

Lyn Brown (Labour, West Ham)

I beg to ask leave to withdraw the amendment.

Clause 6 - Aggravation of offence under section 5

Lyn Brown (Labour, West Ham)

I beg to move amendment 47, in clause 6, page 3, line 20, leave our “B or C” and insert “B, C or D”

George Howarth (Labour, Knowsley)

With this it will be convenient to discuss the following:

Amendment 48, in clause 6, page 3, line 43, at end insert—

‘(8A) Condition D is that the person who committed the offence knew, or had reason to believe, that the consumption of psychoactive substance would cause the person consuming the substance harm.”

Lyn Brown (Labour, West Ham)

We have tabled these amendments to address concerns about disproportionate sentencing. I raised this issue on Second Reading, and it figures heavily in the Home Affairs Committee report, which concluded that

“there is a lack of clarity in the Bill with regard to the relative harm associated with different types of NPS and the appropriate sentence commensurate with the offence.”

Amendments 47 and 48 would make it an aggravating factor to supply a psychoactive substance that the supplier knows, or has reason to believe, is harmful.

Under the 1971 Act, sentences are linked to the harm caused by the drug possessed, supplied or produced. The more harmful the drug, the harsher the maximum sentence. For example, someone prosecuted for possession with intent to supply a class A drug such as heroin could potentially receive a life sentence. The maximum punishment for possession with intent to supply a class C drug such as anabolic steroids, however, is 14 years. There is judicial discretion in applying individual sentences, but the general approach of linking to relative harm is important.

The Bill represents a radical departure from previous attempts to control drugs because it legally decouples controlled substances from an independent and objective assessment of the harm they cause. We understand why that might be appropriate. The process by which the ACMD determines the harm of a substance can be lengthy and resource-intensive, which is precisely why the Home Office cannot keep up with the illicit market. It is difficult to introduce a concept of harm in the Bill without denying the Home Office the tools it needs to address the central problem.

However, by introducing the concept of harm in clause 6, which exclusively addresses statutory aggravating factors, I do not believe we would hamstring the Home Office or prosecutors. Prosecutors would not have to prove a substance’s harmfulness to secure a prosecution for supplying, producing, importing or exporting a psychoactive substance; they would only have to demonstrate that the individual had reason to believe that the substance was harmful in order to establish an aggravating factor and a harsher punishment.

Lyn Brown (Labour, West Ham)

Just as importantly, the Home Office and enforcement agencies would still be able to control substances without having to prove that they are harmful. This amendment would therefore not place the authorities one step behind the market, which is the problem the Bill is designed to solve.

Section 1 of the Drugs Act 2005 included aggravation within its scope. I understand that this is hardly used. Does the Minister know how often it has been used successfully in court? He may seek inspiration on this one, or I am happy for him to write to me with the answer.

Mike Penning (Conservative, Hemel Hempstead)

I will write to the hon. Lady.

Lyn Brown (Labour, West Ham)

I am looking forward to it.

Mike Penning (Conservative, Hemel Hempstead)

It will be a very long letter.

George Howarth (Labour, Knowsley)

I do not think we should be overly detained by the Minister’s billet-doux.

Lyn Brown (Labour, West Ham)

The greatest benefit of the amendment is that it would formally recognise that someone ought not to receive the same sort of punishment for supplying a relatively harmless substance as someone supplying a substance which they ought to know could be very dangerous. It keeps the traditional link between harm and sentencing, which is an important principle, without wrecking the Bill.

Andrew Gwynne (Labour, Denton and Reddish)

My hon. Friend makes an important point on the issue of harm and sentencing. We probably all agree in the Committee that it should be the intention of the law that the more harmful the substance being supplied, the harsher the sentence should be for that supply.

Lyn Brown (Labour, West Ham)

Absolutely. I think that were this included in the Bill it could have a deterrent effect on those involved in supply and change the nature of the market towards less harmful psychoactive substances. I note that the Scottish National party has an alternative amendment which seeks to achieve a similar end. I will repeat what I said when we found ourselves in the same situation when discussing how to exclude social supply: I am very happy to work with other parties and with the Government in order to ensure that our shared goals are reached. I hope that they take this offer in the serious manner in which it is intended.

I look forward to the Government’s response with interest. They will know that this is an issue which has exercised supporters and opponents of the Bill alike, and that if a way round the problem can be reached, we ought to grasp it. Our amendment has the potential to bring even more consensus to the Bill.

Owen Thompson (Scottish National Party, Midlothian)

Apologies for my slightly delayed return; I had to act as a Teller for the vote that has just happened. Our amendment 55 is an amendment to clause 9 not clause 6, although it does fit nicely with those that are here. Our approach is to look to ensure that there is a genuine protection in the concept of relative harm, as the shadow Minister mentioned prior to our suspension, and that the associated psychoactive substance is the subject matter of the offence, so that we do take account and any sentence handed down is relative to the offence. I accept that different sentencing regimes are in place within Scotland and the rest of the United Kingdom and I appreciate the points that the Minister will, I am sure, be making about that.

Our amendment is a probing one, but the fact that it mirrors those tabled by the Opposition suggests that the intent behind the amendments is consistent, regardless of which part of this island we happen to be presenting them from—[Interruption.] These islands. I apologise. I suggest that, as the Bill progresses, due consideration is given to the intent behind the relative harm aspects mentioned in the amendments.

David Burrowes (Conservative, Enfield, Southgate)

I wish to speak to the group of amendments, in particular amendment 55, which provides the opportunity to talk about how the courts would deal with the issue when it comes to sentencing. I accept that the Bill will hopefully help to revolutionise enforcement and provide tools for the police to get out there and deal appropriately and proportionally with getting psychoactive substances off the streets and out of harm’s way for hardworking citizens—all citizens, in fact. That is welcome. The Bill also recognises the civil sanctions and the civil regime regarding the seizure of such items.

When a prosecution comes before the courts—in Ireland there have not been many prosecutions and there may not be a huge number here—we want to ensure that the penalties are just and commensurate with the offence. We therefore have a problem, because the substances are different from controlled drugs, and the Misuse of Drugs Act 1971 contains a classification system that enables relative harm to be attached to a controlled drug, and that is then relevant to the sentence. Because of the blanket ban we do not have that, but I do not want to rehearse our previous debates on the matter.

It is important, nevertheless, not least for the courts because of proportionality, to be able to distinguish between psychoactive substances. No doubt the courts will take account of statutory and non-statutory aggravating factors—we will debate those factors later—and will consider the amount of drugs, the circumstances and the degree of sophistication, but they will also need to reach a judgment on the relative harm of the substance. I draw the Committee’s attention to page 13 of the Home Affairs Committee report, a report I know the Minister read avidly over the weekend—he could not put it down.

Chapter 5, on the concept of harm, draws reference to the evidence of Rudi Fortson, QC, who highlights the position, which the Minister reiterated to the Committee, that the Government do not wish to be disproportionate with sentencing—far be it from them to want to be disproportionate; they certainly do not. There is also wider consideration in case law, principles and conventions that would ensure that every penalty would be considered proportionally.

How, therefore, will the sentencing courts get that assistance? Rudi Fortson states that,

“in the absence of drug classification, or an expert’s opinion (if accepted) as to harm, the courts will have little option but to assume that all psychoactive substances are equally harmful”.

That is the problem we have, and it is why the debate on amendment 55 is welcome.

The Minster has already said that as soon as the Bill has completed its stages he will write to the Sentencing Council encouraging it to take action. The problem with that is that I know from experience that the council is not the quickest vehicle where taking action is concerned. On the desecration of war memorials, there was a commitment from a Justice Minister to write to the Sentencing Council, but it could be considered only when the council was to meet to consider amending its guidelines. I therefore encourage the Minister to make it clear that the process will be expedited.

The Minister and the Government have rightly taken an expedited view in relation to getting on the statute book the legislation regarding the enforcement tools, but we also need it to be fit for purpose for the courts. That is why I would like the Minster to communicate with the Sentencing Council and seek assurance that it will consider the matter in an expedited form so that we will get an answer quickly.

I also take comfort from the recent letter from the Advisory Council on the Misuse of Drugs to the Home Secretary, which now provides a clear scientific framework to establish that this issue can be proved in the lab in vitro. That will also provide an opportunity, with the benefit of evidence that I think is going to be resourced, whether that is from the forensic strategy or the Centre for Applied Science and Technology. That material will all come together to provide the body of evidence for the Sentencing Council to come to an informed judgment. However, that will all need to happen at quite a rapid pace. That is my first point.

The second point is that there will need to be some flexibility, because there are new psychoactive substances coming on stream. How quickly will the Sentencing Council be able to provide appropriate guidance to the sentencing courts for these new substances? I would have thought that there will be a whole new regime for the Sentencing Council to deal with this, given the way that it has taken its time before.

It is absolutely vital for public confidence and the interests of justice that this particular chapter in the Committee’s deliberations is taken to heart. We made a recommendation here that the Sentencing Council be requested to produce appropriate sentencing guidelines, taking account of relative harms. That was a specific recommendation; I think the Minister is intimating that he is on the same page on that one. It is very important that we have something that is fit for purpose, not just for the police but for the courts.

Andrew Gwynne (Labour, Denton and Reddish)

I support my hon. Friend the Member for West Ham on amendments 47 and 48, which she has tabled. I do not wish to detain the Committee for too long, because there seems to be a degree of consensus breaking out. When we were last in discussion, about the previous clause, the consensus was between the Labour and Scottish National party Members; now it seems to be among Labour, SNP and Conservative Members that there is a degree of consensus.

I urge the Minister to consider very carefully the points that were put forward by my hon. Friend when she moved amendments 47 and 48. I agree with the Minister that all of the aggravating factors set out in the Bill so far are fair and proportionate. However, we need to go that little bit further, as my hon. Friend has said, and I would argue, as she did, that her amendments are an eminently sensible solution to disproportionate sentencing.

As it stands, the Bill makes no distinction between classes of NPS. We should be introducing the concept of harm into clause 6. The hon. Member for Enfield, Southgate made some very pertinent points, which were addressed in the report by the Home Affairs Committee, and I will briefly quote from a couple of passages from page 13 of that report on the concept of harm, because they should help us to form our opinions as we discuss these amendments.

The report starts off by saying that,

“one of the principal purposes of the Bill is to ‘protect hard-working citizens from the risks posed by untested, unknown and potential harmful drugs’”.

We all agree with that. That message was reiterated by Lord Bates—Minister of State in the House of Lords—who said that,

“success would mean reducing the harms caused by new psychoactive substances”.

It is interesting that Lord Bates is referring specifically to the “harms caused”. That is why we argue that we should tighten up on the issue of harm in the Bill.

As the HAC report goes on to admit:

“This bill does not calibrate for harm, and indeed exempts known harmful substances whilst banning substances which are not harmful simply because they are psychoactive”.

I do not wish to regurgitate the debate on poppers, but they are a case in point. That is why harm has to be considered.

I think we all agree that somebody supplying very harmful substances should receive a harsher sentence than somebody supplying a relatively harmless substance. The link between harm and sentencing is an objectively just one, which my hon. Friend the Member for West Ham and the hon. Member for Enfield, Southgate have both made very clear. It would also produce a situation where there is a greater disincentive to sell the more harmful substances.

I urge the Minister to think carefully about including the definition of harm in the Bill. It seems as though his noble Friend Lord Bates in the other place has considered that, as referred to in the Home Affairs Committee report. It does not make sense that we ban substances that are not harmful simply because they are psychoactive, at the same time as we do not calibrate for harm, and known harmful substances, as part of the Bill.

Mike Penning (Conservative, Hemel Hempstead)

I thank colleagues for their contributions. The last point raised by the shadow Health Minister, the hon. Member for Denton and Reddish, is probably the most difficult for me, not least because we would be moving away from the blanket ban. That is something that we have tried to introduce for many years. I fully understand the way in which the courts have historically looked at drugs sentencing, but this is new. However, the principle should not be any different. I highlight the fact that I will correspond with the Sentencing Council, as I alluded to earlier on. The situation in Scotland and Northern Ireland is different, but I am sure that they will follow that lead, not least because of the work the Scottish Government have done.

I fully support the principles behind the amendments, and it is clearly right that the courts should take account of the harms and the type of offence, but I feel that this is very much a matter for the independent Sentencing Council. The aggravating factors proposed in the amendments are already broadly covered by the Sentencing Council’s guidelines for drug offences, which we will be replicating. I take the point that my hon. Friend the Member for Enfield, Southgate made about the speed at which the Sentencing Council may need to move, and the speed at which we in Government need to move to give it the facts it needs to make decisions.

The process will be an evolutionary one. We do not want a young person—we keep referring to young people—or a person who had a small amount of a substance and sold it on to someone else because they were broke to be treated exactly the same as a drug dealer who has imported two tonnes of the stuff in a container through one of our ports. Clearly, in sentencing, that would be wrong. I am committed to writing to the Sentencing Council—it already knows that I am going to do this—to say that we expect it to take into consideration not only what the Committee and both Houses decide, but the relevant parts of the Home Affairs Committee report. The part that we have been discussing, in particular, is enormously helpful as we move forward. We do not want people to be treated differently under the law, but we want dealers, as we understand dealers, to be treated differently.

I cannot agree that we should move into the territory of harm, because to do so would completely damage the principle of our thinking. I accept that that thinking is completely new, and it will be quite interesting for the courts, the Crown Prosecution Service and the Director of Public Prosecutions. It is important that the Sentencing Council does its job in England and Wales, and that a similar thing happens in Northern Ireland and Wales. I noted the agreement of the hon. Member for Midlothian and the hon. Member for West Ham on that; when the hon. Gentleman suggested that it would be appropriate, there was a nod from Her Majesty’s Opposition. I have taken that on board, and I will write to the Sentencing Council. We could work together on the content of the letter.

Lyn Brown (Labour, West Ham)

I am grateful to the Minister for stating that he agrees with the principle behind the amendments and that he will write to the Sentencing Council to urge it to take note of what the Committee and the Home Affairs Committee have said. That is very welcome, and I therefore beg to ask leave to withdraw the amendment.

David Burrowes (Conservative, Enfield, Southgate)

I beg to move amendment 40, in clause 6, page 3, line 20, leave out “or C” and insert “, C, D or E”.

George Howarth (Labour, Knowsley)

With this it will be convenient to discuss the following:

Amendment 41, in clause 6, page 3, line 43, at end insert—

‘(8A) Condition D is that the offence was committed on or in the vicinity of any premises intended to locate any vulnerable child;

(8B) In this section “vulnerable child” means any person aged under 18 who is not living with their family and is—

(a) accommodated in regulated residential care or unregulated accommodation under section 17, 20, 25 or 31 of The Children Act 1989, or,

(b) accommodated in accommodation under part 7 of the Housing Act 1996.

(8C) The Secretary of State may by order made by statutory instrument specify the circumstances in which paragraph (a) and/or (b) of subsection (7B) apply.

(8D) Condition E is that the offender supplies a psychoactive substance to any persons under the age 18.’

Amendment 42, in schedule 4, page 48, line 16, at end insert—

“Misuse of Drugs Act 1971

(1) The Misuse of Drugs Act 1971 is amended as follows—

(2) In section 4A (Aggravation of offence of supply of controlled drug) after subsection (4) insert—

‘(4A) The third condition is that the offence was committed on any premises intended to locate any vulnerable child or in the vicinity of said premises;

(4B) in this section “vulnerable child” means any person aged under 18 who is not living with their parents or carers and is

(a) accommodated in residential care under section 17, section 20, section 25 or section 31 of The Children Act 1989, or,

(b) accommodated in a multi-occupant dwelling under part 7 of the Housing Act 1996.

(4C) The Secretary of State may by order made by statutory instrument specify the circumstances in which a court must take into account Condition C;

(4D) The fourth condition is that the offender supplies a controlled drug to any persons under the age of 18.’”

David Burrowes (Conservative, Enfield, Southgate)

The amendments particularly focus on sentencing, on the aggravating factors when someone is convicted under the Bill and on whether there should be a particular focus on those who supply psychoactive substances to children outside accommodation for vulnerable children. They seek to put those factors on the same footing as supplying in the vicinity of a school.

If one thinks about the purpose of including a statutory aggravating factor applying to those who supply drugs in the vicinity of a school, which is in this Bill and in the Misuse of Drugs Act 1971, although we are dealing with new types of drugs, the principle is the same whether it relates to a controlled drug or a psychoactive substance. If someone is plying their trade outside a school, Parliament takes the view that that is a statutory aggravating factor that does not need to be left to non-statutory guidance from the Sentencing Council. We make it clear that that is an aggravating factor that will lead to an increased sentence.

The amendments seek to tease out from the Minister why there should be a distinction. We are considering psychoactive substances, so we have to look at where they are being pushed and where they are subject to wider abuse and exploitation. That is why the amendments particularly focus on extending the statutory aggravating factor to supplying outside residential children’s homes and supported accommodation such as hostels, foyers or night stops. When dealing with such accommodation, Committee members will know from their constituencies and wider knowledge that they often house vulnerable people who can be prone to other forms of exploitation. Substance misuse, particularly of psychoactive substances, can often form part of that.

The amendments refer to accommodation for vulnerable children in order to capture both residential children’s homes and supported accommodation in which local authorities place children under the age of 18. Evidence that has come before all-party groups and no doubt Ministers suggests that such children in such accommodation are more at risk of exploitation than others. It could be argued that they are more at risk of harm than those affected by the supply outside schools, because of the other types of exploitation and abuse that go on in these types of accommodation.

References are also made in the amendments to different aspects of residential care and why children are at particular risk. The Children’s Commissioner has found that a disproportionate number of children who are sexually exploited are living in residential care. Children at a high risk of sexual exploitation also run the risk of exploitation relating to drugs. The all-party parliamentary group on runaway and missing children and adults’ inquiry highlighted the targeting of children’s homes by perpetrators due to the abuse and high vulnerability of such children, which is why the amendments seek an additional statutory aggravating factor. Children in care often lack the shield of a family to protect them from risks, so 16 and 17-year-olds and others are at particular risk of abuse, whether related to drink, drugs or psychoactive substances.

In addition to children in care, vulnerable 16 and 17-year-olds may find themselves homeless or at risk of homelessness but do not become looked-after children. In that zone, they are prone to having complex needs, whether in relation to housing, substance misuse, including drugs, mental health issues, contact with the criminal justice system or wider exploitation. That is why the amendment seeks a statutory aggravating factor. Why not leave it to the Sentencing Council guidelines, which include the

“targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18”?

Non-statutory aggravating factors are already in the guidance.

We have to ask whether supplying to children outside a school is worthy of a statutory aggravating factor. The amendment would amend both the Bill and the Misuse of Drugs Act so that they are consistent with each other. Parliament needs to take the lead, as we did with the Modern Slavery Act 2015, which looked at many areas of exploitation, particularly the exploitation of children. Now is the time to look at the body of evidence and see that the particular vulnerability for children is not so much in schools, where there is more of a protective shield and statutory agencies are trying to prevent things from happening, but away from the eyes of many people. In an area that is sadly subject to exploitation, there may well be a need for Parliament to get on the front foot and ensure that there is statutory provision. That is my position; I hope the Minister considers it seriously.

Lyn Brown (Labour, West Ham)

I have enormous sympathy for the motivations that drove the hon. Gentleman to table the amendments. One of my first jobs was working in a children’s home, so I know just how vulnerable children can be. I also know that he has the support of the Children’s Society, which has been helping to make childhood in Britain safer for more than 100 years and is a fine organisation.

The Children’s Society has highlighted the relationship between new psychoactive substances and exploitation. Sometimes, that exploitation is economic, with reports of drug dealers forcing young men to work for them in order to pay off debts they that have accumulated by trying NPS. Sadly, as the hon. Gentleman mentioned, we also face the problem of sexual exploitation. The Children’s Commissioner found that more than a third—35%—of the children most at risk of sexual exploitation were living in residential care.

PACE—Parents against child sexual exploitation—have demonstrated that young girls have been targeted by groomers with NPS to try to get them hooked. We are all shocked by the grooming scandals that have hit many of our cities and towns, and I am in no doubt that the people engaged in such crimes are just the sort of criminals who ought to be hit by the strictest penalties provided by aggravated offences.

I am interested to hear what the Government make of the amendments. If they cannot accept the current drafting, would they be willing to go away, think about it and come back with alternative plans on Report, because this is an important issue? Will the Minister devote special attention to making sure that vulnerable children are given specific and focused education to ensure that they have the resilience to say no to those who want to prey on them with NPS and other drugs?

Steve Brine (Conservative, Winchester)

On Second Reading, I mentioned Baseline Training, an assessment and training company based in my constituency. Further to what the shadow Minister was saying about the exploitation of young people, Baseline gave me some truly shocking evidence before the Bill was introduced in the House. In April this year, the Hampshire and Isle of Wight drug strategy group had good intelligence that young girls had performed sex acts on men who provided them with mephedrone. There is good evidence coming from Hampshire and, I suspect, other parts of the country that backs up what the shadow Minister said.

Lyn Brown (Labour, West Ham)

I thank the hon. Gentleman for his intervention. I emphasise again that young people in care are vulnerable and need us as their parents, in loco parentis, to help them to say no to those who want to exploit them and prey on them with NPS and other drugs. They need support so that they can look out for themselves.

Owen Thompson (Scottish National Party, Midlothian)

I very much agree with the principle behind the amendment. From the correspondence I have had, I know that agencies such as Who Cares? Scotland very much support the proposals. This is a particular problem, because young people in supported accommodation and the type of accommodation we are talking about require extra support, protection and help. The amendment would go a long way towards addressing some of their needs and dealing with that. I voice my support for the aims of the amendment.

Carolyn Harris (Labour, Swansea East)

I have been greatly troubled by some of the stories I have heard in my constituency of Swansea East from the local police, social workers and organisations. Young women are now grooming other young women, with the fee being legal highs. Some of the stories are absolutely horrendous. The Children’s Society has done great work on that. For 63% of the housing providers who engaged in one of its surveys, the greatest problem they saw for these young people was involvement in legal highs.

Owen Thompson (Scottish National Party, Midlothian)

That is very much the case. In many situations, the young people we are seeking to help and support are at a vulnerable stage of their development. There is a reason we need to give them extra help. It is about ensuring that a situation that has resulted in their being in secure or looked-after accommodation is not made worse by not putting in place extra protection to ensure we help, support and encourage their development towards the better future that I am sure we want for all young people.

Mike Penning (Conservative, Hemel Hempstead)

May I say at the outset, as I did in the previous group of amendments, that I have deep sympathy not only with the amendments tabled by my hon. Friend the Member for Enfield, Southgate but with the excellent work that charity has been doing in this area? One of the things touched on by my hon. Friend was the anomaly between schools and children’s homes.

Clause 6 in its original form was included in the Bill for consistency’s sake, to replicate an identical provision in the Misuse of Drugs Act 1971, because that provision was created before the Sentencing Council existed. I looked long and hard at whether it would be right at this stage to try to replicate that, because it would completely go against what we have been trying to do with the Sentencing Council in that area. We will continue to look at this, and it will be part of the submission to the Sentencing Council, which I will probably send to each of the devolved Administrations as well. While I cannot tell them what they should do, they need to know the will of the House.

We need to keep an extremely close eye on what goes on. Section 125(1) of the Coroners and Justice Act 2009 specifically says that courts must take into consideration the sentencing guidelines on this. We need to ensure that the sentencing guidelines replicate the will of the House and of 99.9% of the public, who want to see the abhorrent crimes we have discussed—and things that it would perhaps not be appropriate to discuss here but which I know about within my ministerial capacity—are subject to the full force of the law. As I have said about previous amendments, that is a matter for the Sentencing Council on which we can advise, but there must be consistency throughout the Bill.

While I understand that the amendment is a probing one, I hope I have given my hon. Friend the Member for Enfield, Southgate assurance. The principle behind the previous set of amendments shows my reaction to this. It is something we are keen to keep under review, and it has to be specific within the correspondence I will draft, with help from others, to the Sentencing Council. With that in mind, I hope my hon. Friend will not push the amendment to a vote.

David Burrowes (Conservative, Enfield, Southgate)

I am grateful for the debate and the cross-party agreement on the principle behind the amendment, which is the concern we all share to ensure that those convicted of supplying their evil trade to vulnerable children get the sentence they deserve. I pay tribute to the Children’s Society for championing the cause.

Mike Penning (Conservative, Hemel Hempstead)

I was discourteous; I did not name the Children’s Society nor refer to that charity in my remarks. A charity of such distinction and with that longevity of service to vulnerable young children deserves acknowledgement by name from a Minister.

David Burrowes (Conservative, Enfield, Southgate)

I thank the Minister for that.

The clause tries to ensure consistency on controlled drugs in relation to supply at school premises, which is understandable, but this is a landmark Bill. Professor Iverson spoke about the Bill being one of the most important and significant pieces of legislation for 40 years. With that comes a need to ensure that sentencing is appropriate to the particular substances and recognises the characteristics of certain substances. It has already been mentioned how, sadly, such substances are used for exploitation, often of children and those in particular types of accommodation and in care. Supply of substances is a characteristic of the abuse, and that is why it is right for Parliament to consider whether it wants to ensure that supply to a vulnerable child is an aggravating factor.

I concede that the Sentencing Council has non-statutory guidelines that seek to address the matter, but it is important to recognise that they are guidelines, not tramlines. As a Parliament, we have a duty to vulnerable people, where there is that power imbalance. The substances that we are seek to criminalise and to set appropriate sentences for increase dependency, create debt, stupefy children and allow them to be exploited. As a Parliament, we should have tramlines, not guidelines, and we should be absolutely clear about that.

We can say too often that we are sending out a message. We should not always send out messages with Bills, but part of this Bill is about sending a message that these substances are illegal and are not good or safe. Part of that message should relate to sentencing so that it is clear that anyone who wants to risk plying their trade to vulnerable people in the type of accommodation specified will face a hefty sentence. Those people will not be looking up the sentencing guidelines that will go to the magistrates court and the Crown court. They will not have a clue about that, but they may well get a clue that the offence has a maximum penalty of seven years or so and that they will be at the upper end of the market for sentencing.

I recognise that the Minister will consider the matter seriously and in good faith. It must be looked at across the piece, along with the relationship between drug sentencing and the Sentencing Council. The Bill is innovative, and we want to ensure that we send out a clear, stark message to those who exploit the most vulnerable. I look forward to the Minister considering the matter further at a later stage. I beg to ask leave to withdraw the amendment.

Clause 7 - Possession of psychoactive substance with intent to supply

Clause 8 - Importing or exporting a psychoactive substance

Lyn Brown (Labour, West Ham)

I beg to move amendment 50, in clause 8, page 4, line 27, leave out sub-paragraph (i).

George Howarth (Labour, Knowsley)

With this it will be convenient to discuss amendment 54, in clause 8, page 4, line 38, leave out sub-paragraph (i).

Lyn Brown (Labour, West Ham)

This is a probing amendment that would delete subsection 1(d)(i), which criminalises an individual for importing a psychoactive substance for personal consumption. Committee members will be aware that on Second Reading it was argued that subsection 1(d)(i) creates a troubling inequity. Although it will not be an offence under the Bill to purchase a psychoactive substance from a shop, drug dealer or website that supplies from the UK, it will be an offence to purchase the very same drugs from a website that distributes from outside the UK. That is important because the internet plays a significant role in the supply of NPS, unlike many other substances. According to the Home Office, about 6% of abusers obtain NPS over the internet, but other surveys have found a much higher rate of internet purchase of NPS. The Global Drug Survey 2014 found that 22% of its sample had bought psychoactive substances from the internet.

The inequity created by subsection 1(d)(i) is particularly worrying, because a consensus has been built around the Bill on the basis that it will not criminalise users. Unfortunately, it is hard to see how a ban on importing for personal consumption could have any other effect. In practice, it will often be difficult for purchasers to know whether they are buying from a UK-based site, so they will not easily be able to tell whether they are committing an offence. Unless amended, the law could lead to websites and sellers on marketplace sites such as Silk Road and its successors prominently advertising that they are UK-based, or perhaps foreign-based but posting from the UK, which would make a mockery of the law. Websites may also attempt to trick British users into thinking that they are transferring the drugs from within the UK by adopting a .co.uk address. The subsection is bound to create unwitting criminals. What measures has the Minister put in place to mitigate that?

I suspect that the Government may be concerned that deleting subsection 1(d)(i) will create a loophole that will make it harder for them to tackle the NPS industry, because, if the subsection were removed, UK-based suppliers might be able to claim that they are importing for personal consumption and evade the law by making lots of small purchases. If the Government make that case convincingly, I will happily withdraw my amendment as I am committed to tackling this dangerous industry. However, I seek assurance that the Home Office has seriously considered how this part of the Bill can be effectively drafted not to not criminalise users. For example, quantitative measures of personal consumption could be incorporated into the Bill to differentiate between personal and professional importation, as is the case for regulations that manage the importation and excise duty of cigarettes and alcohol.

I note that Scottish National party Members have also tabled an amendment exploring this issue, and I am sure they seek the same assurances. Just as on the issue of social supply, I ask the Minister to work with prosecutors and the Sentencing Council to ensure that the Bill does not go after the people we do not want it to go after. I include importers for personal consumption within that group.

Finally, I turn once again to the issue of the resources necessary to enforce the Bill properly once it becomes law. The National Crime Agency admitted that it has a continuing problem preventing the importation of NPS, particularly from China. The NPS expert review identified a number of challenges faced by UK border controls. Some of those challenges, such as the fact that Border Force needs greater powers to seize suspicious packages, will be addressed by the Bill. However, some of the challenges identified by the expert panel require a non-legislative response. The expert panel claims that the intelligence picture on NPS trade is very limited and that we have particular difficulty dealing with websites due to the anonymity provided by e-currencies. What progress has been made on addressing those weaknesses identified by the expert panel?

This is one of the most important issues in the Bill. If we cannot get to grips with the importation of such substances, closing the head shops is all the more likely to lead to the same drugs finding their way into the hands of professional drug dealers, including gangs.

Owen Thompson (Scottish National Party, Midlothian)

I will continue in the spirit of harmony and good will that has been a theme this afternoon. Our amendment 53 was identical to amendment 50, so great minds think alike.

The same reasoning lies behind amendments 50 and 54. Amendment 50 would ensure protection for people importing substances ordered online. Exporting is a slightly different situation, but the logic follows through. The spirit of the Bill is about ensuring that individual users are not criminalised; it is about addressing the wider industry and wholesale suppliers and dealers. Society is changing—in the way in which people approach everyday shopping, for example—so we have to take account of the fact that people approach things differently. It is not simply a case of going down the street to a head shop, or whatever it happens to be, to buy a substance. With every other aspect of life increasingly moving online, we must ensure that legislation keeps pace. These amendments would ensure that there is an eye towards that.

We will seek assurances from the Minister if he does not accept the amendment. This is a probing amendment, and we are trying to ensure that these elements are fully thrashed out before Report. As more and more happens online, we need to ensure that our legislation is keeping pace and taking account of changing trends in how people access substances such as NPS.

Mike Penning (Conservative, Hemel Hempstead)

Again, I thank both the shadow Minister and the SNP spokesman for indicating that these are probing amendments, so my colleagues can relax.

The shadow Minister summed up exactly why I will not accept the amendment. We are not trying to pick on individuals who purchase these products for personal use but, as we close head shops and other avenues, there will clearly be an increase, as the expert panel highlighted. As the Minister for Policing, Crime and Criminal Justice, the National Crime Agency is my responsibility. I have been working with the NCA and other agencies, and I have particularly been working with my colleague, the Minister for Immigration, because obviously Border Force will have a crucial role.

If we accepted the amendment, the debate would be about what is personal use. During this debate we have heard about cigarettes and alcohol. My family was in the pub trade for many, many years, and there has been an issue with Transit vans—I apologise for picking on Ford—and other large vans going across to Calais and coming back full of cigarettes and alcohol. When those vans are stopped by borders, immigration and customs, the driver says, “This is completely for personal use.” That opens up a difficult area.

The amendment would make it difficult for Border Force to do the job we need it to do. As has been highlighted, we absolutely need the expertise in that relevant area. On the point that the hon. Member for Midlothian made about the difficulties that exist online, some of the expertise that we increasingly need is there, but a lot of this is organised crime, and those are the people we are after. I am absolutely determined that the NCA and the other agencies should have the powers and the expertise they need to go after those people, not the little guy who is in possession for personal use.

The difficulty in law—this has been an issue in the courts—is personal use. It is a really difficult area, and that is why I sadly cannot support the amendments. I understand fully their probing nature. I always argue that it is all too easy to build up points as a constable by picking on the little guy, when the others are the guys that we want. I assure the Committee that we have introduced the measures to allow us to get the big guys, not to pick up the little guys. We will keep a close eye on the situation, but I think we have what we need.

Lyn Brown (Labour, West Ham)

Has the Minister given any thought to how purchasers will know whether they are buying from a UK site? I do not think that they will be able to tell whether they are committing an offence. There will be criminals out there who will trick people into believing that they are buying from a UK site.

Mike Penning (Conservative, Hemel Hempstead)

If they buy from a UK site, it is illegal under the Bill, because it is selling. If those who run the site try to represent themselves as a UK site to sell the product, that is just as illegal as being a head shop. What we have said all the way through the Bill is that it is not legislation that is the silver bullet but education and understanding. It will be generational for some people, but that is where the proportionality that we talked about earlier in the criminal justice system, in local government and in trading standards comes in. It is important that we discuss this point, but we need to ensure that there are no loopholes and that the agencies that we are asking to look after us and the legislation have the powers that they need.

Lyn Brown (Labour, West Ham)

We are not prosecuting people who have possession, and we are not going to prosecute somebody who purchases.

Mike Penning (Conservative, Hemel Hempstead)

I understand that.

Lyn Brown (Labour, West Ham)

But if somebody purchases from abroad or from a site that is based abroad, we will be prosecuting them. I am worried about somebody who unwittingly purchases from a foreign website.

Mike Penning (Conservative, Hemel Hempstead)

I understand fully the point that the hon. Lady is making, and it is a difficult area. What I cannot do is to open up the whole Bill because of what will, I hope, be a small group of people. The likelihood of their being prosecuted in that area is very unlikely, because of everything that we have debated. Purchase and possession would be legal—we have discussed that—so there would be no illegality on the part of the individual. It is the seller or the dealer we are after. I think I am right on that point.

Lyn Brown (Labour, West Ham)

I beg to ask leave to withdraw the amendment.

Clause 9 - Penalties

Clause 10 - Power to provide for exceptions to offences

Mike Penning (Conservative, Hemel Hempstead)

This is a technical thing, but it is important. The clause confers on the Home Secretary the power to specify exceptions to the offences in clauses 4 to 8 by regulations. As we have already debated, new schedule 1 lists certain excepted activities on the face of the Bill, so clause 10 is not required.