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My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Scotland of Asthal.)
At Second Reading, I said that some aspects of the Drugs Bill caused us concern. I have no intention of seeking the opinion of the Committee on the matter, but I hope that the Minister, having listened to what I have to say, will be able to put on record some of my concerns.
Clause 2 is the one that I feel most strongly about. We raised the matter in the other place, and we do so here as well. Let me explain my reasons. I see a number of dangers arising from Clause 2. Of course, there is an advantage as far as the police are concerned. It may reduce the amount of police time spent in court. The clause is trying to reverse the previous practice, whereby, on a charge of intent to supply, police had to bring in expert witnesses, normally drug squad officers. They would give evidence on what would constitute dealer quantities and what inferences could be drawn from the possession of certain other articles. It is possible that in making a presumption we would avoid the attendance of drug squad officers, particularly in summary cases. Although I see the attraction of that, it may not necessarily be an advantage.
It is a big advantage to the drug squad officers to give evidence in court and to have the experience of being cross-examined by solicitors, advocates or barristers in a court. It keeps them sharp and allows them to build up expertise. I have spoken to a colleague involved in training police officers. In such cases, officers are then able to be used to much better effect on the big cases in the High Court, when it really matters.
The real danger that I can see in the clause is on the practical side. I foresee that, with the best will in the world, busy police constables working in the streets will come across cases in which there is a substantial amount of drugs but that substantial amount falls short of the level that is prescribed by the Secretary of State by order. In those circumstances, the police officers will think, "Well, it is not a dealer quantity according to the regulation, so I will just charge him with simple possession".
There is another downside. The provision will bring with it a laziness of attitude, which will mean that ultimately the community is not better served. I am concerned that if we operate with such a presumption, a busy constable in the street or a busy duty sergeant will take the attitude that, if the amount does not come up to the prescribed level, they will go for simple possession. By the time the matter is reported by the prosecuting authorities, the evidence that might have been there will no longer be there.
I do not think that the provision achieves anything new. Existing case law says that simple possession of a substantial amount of drugs is sufficient for a court to infer intent to supply. There will be real difficulty for the Government when it comes to establishing what level of drugs will be stipulated in the order. The Minister says that there will be different levels for different drugs, which makes common sense. There will be different situations in different towns and cities. If we get the level wrong, the traffic of cases through the courts will be affected enormously. Given the geographical distances, I cannot see how we would get the issue right.
If there were a real lacuna or gap in the law, the measure might be worth trying. However, the law as it exists is perfectly capable of dealing with all the issues if the police and prosecution services are given sufficient resources to give each case proper consideration and preparation before it goes to court. I suspect that, if there is a problem, it stems from lack of resources, and the provision will not help that. If anything it might make it worse. It is for those reasons that I oppose the Question that Clause 2 stand part of the Bill.
I share some of the concerns of the noble Lord, Lord Dholakia, which is why I added my name to the amendment on the Marshalled List.
I noted the comments that the Minister made at Second Reading about how it would be possible to prescribe the amount of different drugs. Having read those comments carefully, I still say that they are pretty confusing. It would be extremely difficult to say which amounts were relevant. The Advisory Council on Misuse of Drugs may be expert on drugs, but I am not certain it is expert on the amounts that people carry with them on the street. The issue is going to be difficult and will remain a grey area. We heard the Minister's comments on that.
The area of the clause that particularly worries me is the part that says:
"the court or jury must assume".
There is no ability, if the amount prescribed is for some reason incorrect or the person is carrying an amount outside the prescribed limit for a reason that I cannot imagine now—perhaps none of us can—but there is no grey in this at all. There is no ability for the defendant to offer any mitigating circumstances. It is somewhat draconian to assume automatically that, because someone has a quantity of a drug, they are supplying it. I entirely understand what the clause is meant to achieve and recognise that there is some merit in it, but the drafting concerns me.
I have been trying all day to come up with a suitable analogy, without a great deal of success. The only one that I can come up with, though obviously it is not right, is that we could imagine that one of your Lordships were going to France in your car to buy a car-load of wine. Clearly, none of us can drink a car-load of wine in one go—or I should hope not, anyway. If the same standard were to be applied to that example as applies in this clause, the fact that you were carrying more wine than you could possibly drink in one sitting would automatically mean that somebody would assume that you were a wine merchant, as the Customs used to a year or so back, and that you were going to sell it. That is of course completely ridiculous, and the same problem is caused by the wording of the clause.
My concern engages the diminution of the presumption of innocence, relating to Article 6.2 of the European Convention on Human Rights. As we said at Second Reading, this clause will effectively reverse the burden of proof for the offence, which means that the onus will be on the accused to prove that he did not intend to supply—that is, that he is not a dealer. Convictions for this offence generally attract considerably higher sentences than equivalent convictions for simple possession, and can also trigger the application of a minimum sentence on third conviction.
Proof of an intention to supply therefore has very serious consequences for a defendant. We believe that evidential presumptions of this type should rarely be used in criminal proceedings, since they can water down the criminal standard of proof. I am sure that the Minister is aware that the Court of Appeal of Northern Ireland has said that presumptions should not be used unless, having done so, the court would be left satisfied beyond reasonable doubt of the guilt of the accused. Justice suggests, in its briefing, that the House of Lords would take a similar approach should that be applied in England.
I refer to Liberty's briefing on the clause, when it says:
"Clause 2 undermines the traditional presumption of innocence at common law and due process rights under Article 6. Further, any alternative, human rights-compliant reading of the Clause would render it pointless. If an individual is to be convicted of intention to supply a controlled substance, the court should be satisfied beyond reasonable doubt that this intention existed at the relevant time. In line with the 'golden thread' of English law, the presumption of innocence should be upheld, and the quantity of drugs in the possession of a defendant should continue to be only a factor in the consideration of a case".
I was unable to be present at the beginning of the Second Reading of the Bill, so I could not speak then. If I had spoken, my speech would have echoed much of the critical stance that came through the speeches of most other noble Lords who spoke.
The Bill has several defects, not only this one, however praiseworthy are the parts that aim to point drug-dependant people towards treatment. My noble friend Lady Scotland said, at Second Reading, that we should,
"properly discharge our responsibility to scrutinise carefully the legislation that comes before the House".—[Hansard, 14/3/05; col. 1077.]
That was in relation to this Bill. I could not agree more but, of course, for that we would need proper time between stages in which to do that very thing. I believe that the Bill should have been reintroduced after the election; it should have been withdrawn, and we could have had proper time to debate it later.
The clause that we are debating is a good example of why the Bill needs such scrutiny. I agree with the points made by noble Lords who have spoken, advocating that this clause ought to be dropped.
It is right that we had a detailed discussion of this matter on Second Reading. I understand fully the concerns that the noble Lord, Lord Dholakia, raised. I hope that I shall be able to clarify some of those points for him so as to make him a little more satisfied that the way in which he would like the provisions to work is in fact the case.
As noble Lords know only too well, the clause creates an evidential presumption of intent to supply when the defendant is found to be in possession of a particular amount of a controlled drug. The effect is that when the presumption applies, a court or jury must assume that the defendant intended to supply the drug in his possession. However, I invite noble Lords to cast an eye at the second part of Clause 2, because insufficient regard has been paid to it. The noble Lord, Lord Mancroft, referred to new subsection (4A) of the Misuse of Drugs Act 1971, but that must be read in conjunction with new subsection (4B), which says:
"Subsection (4A) above does not apply if evidence is adduced which is sufficient to raise an issue that the accused may not have had the drug in his possession with that intent".
So it is a rebuttable, not an absolute, presumption.
The clause places an evidential presumption, rather than a legal burden of proof, on the defendant. The presumption is rebutted when evidence is adduced which raises an issue or arguable case that the defendant did not intend to supply the drugs in his possession. If such evidence is raised, the prosecution will be required to prove beyond all reasonable doubt that the defendant intended to supply the drugs in his possession.
I know that noble Lords have expressed concern regarding the fact that the Joint Committee on Human Rights found that it was unable to reach a definitive view on whether the evidential presumption placed on defendants to an offence of possession with intent to supply controlled drugs was compatible with the convention. That was because the Joint Committee had not been informed of the prescribed amounts of drugs that would trigger the application of the statutory assumption. Those amounts will be provided in regulations subject to the affirmative resolution procedure.
The Joint Committee has emphasised that the convention will require there to be a sense of proportion in the amounts which are prescribed by regulation, vis-à-vis the seriousness of the offence of possession with intent to supply controlled drugs. We are very mindful that any levels to be prescribed by regulations with a view to triggering the statutory assumption must be appropriate, reflect and be proportionate to the seriousness of the offence.
We believe that consultation with a range of bodies which have expertise in the field of drugs is essential to ensure that the particular levels prescribed are appropriate. In another place, the Minister responsible for drugs undertook to consult the Advisory Council on the Misuse of Drugs as well as a range of other people, including the Forensic Science Service, the police and the Crown Prosecution Service. Other bodies that will be consulted will include the Department of Health, the National Treatment Agency, the Association of Chief Police Officers, and non-governmental organisations working in the drugs field. I say to the noble Lord, Lord Mancroft, that that is important, because it deals with his point about where to draw the line between the users and abusers and those who actually enforce. We believe that we should listen to everyone on that matter, in order to get it right.
Any levels prescribed by regulations must be debated by both Houses under the affirmative resolution procedure. We consider that such consultation and debate will provide the necessary transparency and safeguards and will assist us in securing prescribed levels that are indeed proportionate. The need for the thresholds to be agreed by affirmative resolution of both Houses will give noble Lords the opportunity to scrutinise the thresholds which it is proposed to adopt. I anticipate that we will be in a position to bring forward such a resolution late in 2005 or early in 2006.
To give an indication—and it is only an indication—of what these thresholds might be, the level set out in an informal agreement reached between one police force and the CPS locally regarding when a charge of possession with intent to supply is appropriate are: in relation to heroin, bulk 7 grams or more, or 10 separate 0.1 gram wraps or more; with crack cocaine, bulk 7 grams or more, or 10 separate 0.1 gram rocks or more; with cocaine, bulk 7 grams or more, or 10 separate 1 gram or 0.5 gram wraps; and ecstasy, 10 tablets or more. Finally, for cannabis resin the relevant figure is 112 grams or more or 10 individual pieces or more. For the leaf it is 0.5 kilograms or more or 20 individual bags or more. That gives an idea of what one police force has done to approach this matter. However, I need to make clear that when we tackle this matter it will not just concern local protocol. The process will take into account all the medical and other evidence and try to establish a measure that will apply right across the board.
However, I should emphasise the importance that consultation will have regarding where we finally end up. The purpose of this clause is to achieve greater consistency right across the country on when a defendant is charged with possession with intent to supply; clarify the point at which the quantity of drugs in a person's possession becomes above and beyond that reasonably held for personal use; increase the success in convicting dealers and disrupt the activity of dealers. It is on that basis that I move that Clause 2 stand part of the Bill.
For the Committee's convenience I should point out that Amendment No. 1 is grouped with Amendments Nos. 3, 5 and 9.
I was going to start by apologising for tabling these amendments so late last night that your Lordships did not get a sight of them until today—that was until I discovered that the government amendments were laid even later; this morning.
I remind the Committee that we had Second Reading of this Bill on Monday as I believe that no one was aware that it was taking place. Only three Back-Benchers were able to speak and all three of them were pretty much opposed to the Bill. It was not at that stage moved into Committee; in fact, it was not referred to a Committee of your Lordships until a short while ago. I am not quite clear why we are now having to go through this because it is not exactly news that the election is coming. We have known about it for some time.
I believe that I have never heard of a Bill coming through the wash-up stage—which is entirely a Front Bench process and nothing to do with us poor old foot soldiers on the Back Benches—that has not been at least moved into a Committee and has not had any scrutiny at all in this House. It is not an urgent Bill. If it was urgent, it should have come forward earlier in the Session. Therefore, it is rather undesirable for the noble Baroness to point out the desirability of having consultation. A number of organisations that I know well would have liked to offer briefing on this Bill. We Back-Benchers need and appreciate those briefings on many different subjects. However, we have not had the opportunity to receive those briefings on this Bill. It is an extremely unsatisfactory way to proceed on a controversial and difficult Bill.
Clause 3(5) refers to the person—rather than defendant at this stage as he or she has not been charged—not being able to refuse what is called a "drug offence search" without good cause. Clause 3(5)(a) states that,
"the court, in determining whether there is a case to answer;
(b) a judge, in deciding whether to grant an application"— and, most importantly of all,
"(c) the court or jury, in determining whether that person is guilty . . . may draw such inferences from the refusal as appear proper".
Therefore, I very shortly ask two questions. What is good cause? What inferences from the refusal appear or do not appear to be proper to draw? More importantly, how is the person to know what is good cause and what inferences can properly be drawn? I beg to move.
As the noble Lord knows, Clause 3 introduces in England and Wales—and Clause 4 similarly introduces in Northern Ireland—the requirement that the suspect's written consent is obtained prior to the intimate search being carried out. Detainees must be informed that an intimate search has been authorised and the grounds for it. The authorisation for the search, the grounds for it and the giving of the appropriate consent must be recorded in the custody record.
The clause also allows a court or jury to draw such inferences as appear proper should consent to an intimate search be refused without good cause. Where there is good cause, no such inference will be drawn. By way of example, a pregnant prisoner may well have good cause for refusing to consent to an intimate search. Cultural sensitivities will also be relevant when determining what constitutes good cause. Often it will be a question of fact which will pertain to the particular case. Similarly, some drug dealers will swallow drugs suitably wrapped upon their arrest to conceal evidence.
Clause 5 with regard to England and Wales, and Clause 6 with regard to Northern Ireland, enable a police officer of at least the rank of inspector to authorise an X-ray or ultrasound scan of a person arrested for an offence where he has reasonable grounds for suspecting that the person has swallowed a class A drug which he had in his possession with intent to supply or with intent to export unlawfully. Any charge made by the National Health Service would be met by the police.
We tabled a government amendment this morning. The relevant amendment that we tabled is only a technical amendment which related to the SOCA Bill and staff custody officers. We waited until the subject was discussed yesterday before tabling the amendment. Had the outcome of the SOCA Bill been different, our amendment would also have been different. We finished consideration of the SOCA Bill today. We had to wait until those issues were dealt with before tabling our amendment. All the matters that are before the Committee are properly before it in accordance with the matters outlined at Second Reading earlier this week.
As with Clauses 3 and 4, Clauses 5 and 6 require that the suspect gives his written consent to an X-ray or ultrasound scan being carried out. The suspect must be informed that such a procedure has been authorised and the reason for that authorisation. As with Clauses 3 and 4, should a person withhold consent for such a procedure without good cause, a court or jury may draw such inferences as it sees fit. The whole purpose of Clauses 5 and 6 is to give the police an indication of the need to detain someone to allow drugs to pass through their body.
The Committee will have noted that Clause 8 has some relevance to Clauses 5 and 6. It introduces the power for magistrates to remand into police custody for an extended period upon charge a person suspected of swallowing a drug. The purpose of Clauses 3, 4, 5 and 6 together is to enable those in possession of controlled drugs with the appropriate criminal intent to be brought to justice by deterring those who conceal them in a body cavity or swallow them from withholding consent for the appropriate procedure without good cause, and enabling courts and juries to act should they do so.
Appropriate intent means for these purposes having possession of controlled drugs with intent to supply them or to export them unlawfully; in other words, the provisions are targeted at drug dealers not drug users. Amendments Nos. 1, 3, 5 and 9 seek to remove the provision for courts and juries to draw such inferences as appear proper from a refusal without good cause. The effect would be to allow those seeking to conceal evidence of possession of a class A drug to do so by refusing consent to an intimate search, X-ray or ultrasound scan without consequence. Hence, it would maintain a loophole that the police have identified to us as one used by dealers to frustrate justice. It is for that reason that we cannot support the amendments.
I hope that I have said enough to explain to the noble Lord why the provisions are proportionate, will be necessary, and can be dealt with perfectly properly.
I am grateful to the noble Baroness for her explanation, which was full and detailed as it always is. I am not certain still. I entirely understand the purpose, and I understand how the clauses both in England and Wales and in Northern Ireland fit together, but I am not certain how a defendant would know that, or a person—we do not know whether they are a defendant yet. I am not sure how they would know, and I am not sure what the inferences are that were proper or improper. I will read with care what the noble Baroness said. In the mean time, I beg leave to withdraw the amendment.
These are technical amendments, which are a means of remedying the fact that by error both the SOCA Bill and the Drugs Bill were drafted to insert a new paragraph 35B into Schedule 4 to the Police Reform Act 2002. They ensure that the Drugs Bill inserts a new paragraph 35C after paragraph 35C inserted by the SOCA Bill, and no longer inserts a second paragraph 35B. I beg to move.
In moving Amendment No. 4, I shall speak also to Amendment No. 8 with which it is grouped. The Minister has already referred to and described the purpose and the reason for X-rays and ultrasound examinations to be taken in hospital and also in a GP surgery or another place for medical purposes. This is a probing amendment. Can the noble Baroness tell us how this will work in practice? Will the police take the defendant or the person, if he still is a person, to a hospital accident and emergency department and ask him to queue up? What happens if a doctor or a nurse, who make their living caring for the sick, does not want to do the police's work for them? How will that work? Are people going to have to sit around for ages? Is the police doctor going to arrive with ultrasound equipment? It seems rather complicated, and it would be helpful if the Minister could describe how the Government foresee or envisage this rather complex process working. I beg to move.
The noble Lord will know that in relation to these matters it is already the position that when X-rays and other procedures have to be arranged, practical arrangements are made and defendants undergo the tests without any difficulty at all. I take it that the noble Lord is referring to Amendment No. 10. The practical ability to do that has not been an issue at all in relation to the way in which that has been managed. I can certainly write to the noble Lord in relation to the practical matters, but in this Bill we are setting out the ability to do it, and those practical issues will be resolved between the relevant agencies in due course.
I do not intend to press the amendment tonight, or to go any further with it, but it is a bit odd to put a complex procedure in a Bill and then not be able to explain how it will work. Bills all have practical consequences, and these are difficult areas. I tried to describe a situation that might happen. It does not apparently appear to be a problem, but my understanding from people who work in the field is that those matters are difficult and there are problems.
They are particularly distressing for defendants and for their families, particularly when people find out in the end that they have been incorrectly charged. My understanding is equally that many medical care services are deeply unhappy at carrying out those procedures. That has been brought to my attention on several occasions. These are sweeping arrangements, which have not been looked at in detail.
As I said, this is a probing amendment, but there is no doubt that that was not a satisfactory or helpful answer. In the mean time, sadly, due to the lateness of the hour and the importance of other business to come, I beg leave to withdraw the amendment.
I have already spoken to the amendment. I beg to move.
moved Amendment No. 7:
Page 6, line 41, leave out "35B" and insert "35C"
On Question, amendment agreed to.
Clause 5, as amended, agreed to.
Clause 6 [X-rays and ultrasound scans: Northern Ireland]:
[Amendments Nos. 8 and 9 not moved.]
Clause 6 agreed to.
Clauses 7 and 8 agreed to.
Clause 9 [Initial assessment following testing for presence of Class A drugs]:
My concern here is simple—if noble Lords read the top line of page 11:
"An analysis of the sample reveals that a specified Class A drug may be present in the person's body".
Clearly, if noble Lords read the rest of the clause and the subsections following, that is an important point. This clause allows police officers to require a person to attend an initial assessment and remain for its duration. On a purely practical point, that seems a little pointless if that person has not tested positive for class A drugs but merely might have done.
I ask noble Lords to think about it in context for a moment. A person is arrested and not charged—which means he may not have done something wrong and he may not even have drugs in his body, because we still have "may" at the top—but he is still required to go for an initial assessment on the whim of the police officer. The criteria are fulfilled, and then he may even have a follow-up assessment. Assume that later he is found innocent of the original charge, or even that it is dropped, and it turns out that he has no class A drugs in him. He could still be guilty under this Bill and be imprisoned for 51 weeks or fined up to level 4 for failure to attend an assessment that he did not need, for drugs that he had not taken, after a crime that he did not commit.
I accept that that will probably not happen, but it could all be avoided if one ensures in the wording of the clause that the drug test must be positive. I really do not see that in these difficult areas you can play with people's lives by leaving grey areas. There is a world of difference between a test that is positive and one that might be. I beg to move.
I hear what the noble Lord is saying, but I assure him that he is being unduly pessimistic about how the provisions will work. The groups of amendments from Amendment No. 10 to Amendment No. 30 seek to reduce the impact of the provisions contained in Part 3 of the Bill, which require those who have tested positive—that is the most important thing, that they have tested positive for class A drugs—to attend an initial assessment and, where required, a follow-up assessment. That is the condition precedent. We are not talking about someone who has not taken the drug or has nothing to do with it; they must have tested positive if the process is to apply to them.
If the amendments were accepted, the provisions would apply to fewer individuals and fail to target those who may only be starting on the road of drug misuse and crime. The noble Lord has an interest in making sure that those who have become or may become addicted to drugs have as early a point of reference to help and support as possible. The provisions very much help that to take place.
Amendment No. 10 would mean that the analysis would have to reveal that a specified class A drug was actually present before a police officer could require a person to attend an initial assessment and stay for its duration. Let me explain what happens with a testing on charge under Section 63B of the Police and Criminal Evidence Act 1984; we envisage that it will continue if Clause 7—it is on testing for the presence of class A drugs on arrest—is enacted.
The technology used in the police custody suites is a screening tool and will reveal the presence of all opiates rather than the specified class A drug of diamorphine—heroin. That is because, currently, no test is available that can be economically and reliably used to test for heroin alone. It is therefore possible that, under the current testing regime, legitimate drugs within the opiate range such as codeine may be detected when using the on-site police custody test. However, should that be the case or if a person challenges the result, the test sample can be sent to the Forensic Science Service for a forensic analysis to provide a conclusive result using the "gold standard" test provided by gas chromatography/mass spectrometry—GC/MS.
To accept the amendment would mean that all test samples would have to be sent for the further analysis before the requirement was imposed. That would be costly and delay the police imposing the requirement to attend an assessment for no obvious benefit. Currently, under the testing on charge, only 3 per cent of tests are challenged and sent for the further analysis. Of those challenges, only 4.4 per cent are upheld. We will issue guidance which provides that, where a person challenges the result of a drug test at the time of the test, the assessment will not be scheduled until after the results of the further analysis are received. Where the further analysis is negative, the obligation to attend the assessment will cease. That will prevent innocent people being assessed in the way in which the noble Lord fears.
On the basis of that explanation, I invite the noble Lord to withdraw his amendment.
That was a helpful answer. There are sound reasons for encouraging people into early diagnosis; that is something that we have been trying to do across the board for a long time. The Minister is right that there are significant testing difficulties, and I am delighted to hear about the guidance. The guidance on the matter will be important. The Bill—admittedly, most people do not see it and will not see it when it becomes an Act—is not clear, but the answer that she gave us is extremely helpful. I beg leave to withdraw the amendment.
I remind the Committee that the amendment is grouped with Amendment No. 15. The amendment's purpose is simple—to ask the Government what a suitably qualified person is. I confess to having a certain history on the matter, having spent about 10 years in the Department of Health trying to persuade it to get involved with the certification and qualification of drug counsellors. I regret to tell the Committee that they were not remotely interested and it had to be done by the voluntary sector, which I never thought entirely satisfactory.
It is extremely difficult to know who is properly qualified. Too many people in this country who are not qualified in the way that we would desire are still practising. There is a history of poor diagnosis of addiction in this country. Virtually anybody can still set up as a counsellor by sticking a brass plaque on the wall and advertising. Who is suitably qualified to act in these processes is extremely important. We still have too much amateurish treatment, although the quality is rising rapidly. One would not want those not qualified to be involved. I would be grateful if the Minister could tell us the sort of criteria at which the Government will look to identify who is qualified to carry out these important matters. I beg to move.
I understand now why the noble Lord tabled the amendments as he did. The substitution of "properly" does not add anything material to the meaning and is unnecessary in view of Clause 19(6), which defines what is meant by a suitably qualified person for the purposes of the assessment.
"Suitably qualified person" and its definition is consistent with the term used in Section 3 of the Bail Act 1976 in relation to the provisions for the assessment of drug users as a condition of bail under the provisions relating to drug users—the restriction on bail. Clause 19 provides for the Secretary of State to specify from time to time the qualifications or experience which a suitably qualified person must have. That will be set out in guidance, which we propose should be drawn up in consultation with the Department of Health and other key stakeholders.
Perhaps the Government, working together, have been a little more successful than the noble Lord hitherto. I am very pleased that that is the case.
I am most grateful for that answer, too. I probably should have said earlier that the amendments are tabled as they are because, in the short time available, I could not think of a better way to ask the questions. That is solely the purpose of them. I hope that the noble Baroness will forgive me for that.
I am delighted that there will be guidance and consultation. I urge the Government to make that consultation as wide as possible, as the real expertise in these difficult areas lies not in the statutory sector, but in the voluntary sector. That is terribly important. Not enough people in the voluntary sector are consulted. I have sat through many Bills such as this over the past 18 or so years, and so often one hears, after they have been enacted, leading people in the field saying, "We never knew anything about it". So I would urge the Government to consult as widely as possible in the field, through the tentacles of the NTA, but also wisely. I beg leave to withdraw the amendment.
The purpose of the amendment is to raise concerns about the phrase that appears in line 11, regarding a "propensity to misuse" drugs. There has been a difficulty for a long time in this country about the difference between misusing drugs and addiction to drugs. These are important.
In the initial and follow-up assessments regarding the sending for treatment of people who commit crimes due to their drug addiction, "treatment" is another word for healthcare. Healthcare is for people who are unwell. In the area that we are discussing, that means addicts. Treatment for drug addicts is getting much better in this country and is working well in many fields. That is great. But you cannot treat misusers, because misuse is not an illness.
The alcohol analogy is the simplest—many, or one or two, of your Lordships occasionally use alcohol. One or two of your Lordships may know people who are alcoholics. One or two of your Lordships may have occasionally misused alcohol once or twice in their lives. Those three matters are completely different. Whereas you can treat alcoholism, you cannot treat misuse. The fact is that users misuse and alcoholics misuse. But misusers are not necessarily alcoholics. That may sound complicated and I hope that it will look better in Hansard tomorrow morning. The reality is that the phrase "propensity to misuse" is most extraordinary and I have no idea how anyone will be able to understand its meaning or identify it.
We know that genetics plays a part, as does environment, but those cannot be grounds for a referral to treatment, unless you wish to clog every treatment facility with unmotivated and disruptive time-servers who are sent there by the courts. As chairman of the Drug and Alcohol Foundation, which is one of the leading day care providers here in the City of Westminster in Dartmouth Street, exactly one street away from the Home Office, I can say that we are, as a tiny agency, clogged with people who are sent to us by the courts. Those people are not motivated, they should not really come to us and they are extremely disruptive both to the staff and the other clients. That is a real problem and my understanding is that it is a growing problem in many agencies throughout the country. It relates to our discussions during an earlier amendment regarding misdiagnosis, which has always been a particularly British problem.
In tabling this amendment, I draw attention to the fact that a "propensity to misuse" is a deeply unfortunate phrase. It would be better if it were not in the Bill. I hope that guidance can ensure that people who misuse, but are not addicts and probably not treatable, are not referred to, and therefore clog up, treatment facilities where there are few enough places at the moment for too many clients. I beg to move.
First, perhaps I may comfort the noble Lord in saying that the term "has a propensity to misuse" has already been used in other legislation. For example, it is used in Section 19 of the Criminal Justice Act 2003, which amends Section 3 of the Bail Act 1976. It is a term with which those who have to deal with legislation are familiar, and know how to interpret it. Therefore, it is understood to a great extent.
Amendments Nos. 12, 13, 14 and 17 would reduce the scope of assessments in Part 3 of the Bill to establishing only whether a person had a dependency upon any specified class A drug. It would preclude establishing whether those individuals who have not reached the stage of dependency may have a propensity to misuse specified class A drugs. The aim of Part 3 of the Bill is to help those who are using specified class A drugs—heroin, crack and cocaine—into treatment and to lead drug-free and crime-free lives.
These drugs not only do terrible harm and damage to the individuals taking them, but to the communities they live in. The initial and follow-up assessments will give help and advice and steer those who need it into treatment. We do not want to help just those who are already dependent on those drugs, but those who may be just starting on a way of life involving drug misuse and the crime associated with it.
The noble Lord, from his long experience of dealing with those who have, tragically, become addicted to drugs, knows that sometimes the journey to that dark place of total addiction can be rapid—but can sometimes take a long time. If we can interrupt that pathway quickly and at the first stage, it may be that the drug addiction will not ripen into a full-blown, debilitating addiction, which destroys the life of the abuser and, usually, everyone around them—particularly their family, who love them, often very dearly.
I am grateful for that explanation. As I said—and we have said twice tonight, I think—early diagnosis and early intervention are extremely important. This is an extremely difficult issue. I raise it because it is causing considerable difficulty in the field. There are too many inappropriate referrals, and they are fantastically disruptive when they do happen, as I have said, to staff and other clients.
We have not yet got this right. Definition is very important and very difficult: the difference between abusers and misusers, and addiction and dependence. It is very confusing. Quite a number of pieces of legislation, whether they are inspired by the Department of Health or the Home Office, cross over, and occasionally definitions change, which causes immense problems. Most of them started wrong and got wronger, though over the years they have been getting slightly righter.
If the noble Baroness reads tomorrow what she said today, I think she will find that the swapping of those words and the meanings that are attached to them by different people in different spheres, whether in the criminal justice system, the healthcare system or the social services system, is one of the problems. I would urge the Government to look at that very carefully. However, this propensity to "misuse" strikes me as an extremely dangerous route to go down. I think that we should view it with very great care. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 and 14 not moved.]
Clause 9 agreed to.
Clause 10 [Follow-up assessment]:
[Amendments Nos. 15 to 18 not moved.]
Clause 10 agreed to.
Clause 11 [Requirements under sections 9 and 10 supplemental]:
[Amendments Nos. 19 and 20 not moved.]
Clause 11 agreed to.
Clause 12 [Attendance at initial assessment]:
This is another probing amendment, simply to ask a question. Page 13, line 35 of the Bill states:
"The initial assessor must inform a police officer or a police support officer if the person", and so on.
Presumably—I do not know—the initial assessor does not work for the criminal justice system or the police. There is no sanction if he does not inform. Indeed, what happens if he does not? Are we going to charge him as well? At what point does someone's healthcare become their own business? What happens if the assessor is concerned about patient confidentiality, which is very important? This is a very difficult healthcare issue and these are very difficult and vulnerable people—even if to some they are simply awkward offenders, as undoubtedly they are. However, they have their right to privacy and their need for healthcare as well, which is really why we are going through this process.
So, at what point does someone's healthcare become their own business? As I understand it, at this stage the person has still not been found guilty of an offence. We are already obliged to appoint suitably qualified persons as assessors, as we have just discussed. However, if in the process those suitably qualified persons, who presumably have a duty of confidentiality as part of their qualification as assessors or as healthcare professionals, betray the confidences of their client, then they, like most of the qualified people I know, would lose their licences to practise. So perhaps the counsellor will wish to keep the treatment process confidential.
My experience of treatment, which is quite considerable now, is that breached confidences in the treatment process invariably wreck that process. I am certain that that is not the Government's intention. It seems to me that the drafting of this clause is somewhat draconian, although it provides no sanction. Unless I have misunderstood it, which I may have done, it may have the exact opposite effect of that intended. I beg to move.
I understand why the noble Lord has opened this matter, so that we can respond, but I should like to reassure him that the way in which the amendment is phrased would not in fact assist an assessor. While the aim of the amendment may be to assist the drugs worker/client relationship, we believe that this would place the initial assessor in a difficult if not invidious position.
It is not an offence for the assessor not to inform the police. All the assessor needs to do is to say whether the person has attended. The requirement to attend the initial assessment and remain for the duration is imposed by the police. The duty on the assessor is merely to report whether the person complied with the requirements—basically, to tell the authorities whether they turned up and whether or not they stayed for the assessment. It will be for the prosecuting authorities, and ultimately the courts, to decide whether a person has failed to do so without good cause and is therefore guilty of an offence.
The noble Lord agrees that people must be assessed so that we know the nature of the condition that they have and what assistance they may or may not need. If the court is to do that, it is important that we have a way of confirming that the person did or did not take advantage of that opportunity. That is all that the provision seeks to do.
Amendment No. 23, which is grouped with Amendments Nos. 24, 28 and 29, is merely intended to raise the issue of the size of the penalties in the Bill. In my amendments, I replace those penalties with other ones. I do not know whether they are right; I am not a great expert on the level of offences. But it seems to me that a year in prison or, I believe, a £4,000 fine at level 4 is slightly high for what is effectively missing an appointment, although it may be a very important appointment.
Under these charges, a great many people will be arrested for acquisitive crime, mainly to fund their drug habits—even the dealers. We are not talking about the "Mr Bigs" of this world; we are talking about small-time dealers, and basically most of them supply drugs to fund their own habits. The reason for that is that they do not have any money. How will they pay these fines? Unless they are lucky enough to be in one of the small, but admittedly increasing, number of prisons that have good drug programmes, the likelihood is that they will end up with a worse habit when they come out than when they went in.
Standing back from this issue, such people are stealing only because the drugs are so expensive, although they are far cheaper than they used to be. The reason they are so expensive is that they are illegal, which is government policy. Those who steal are arrested and end up being fined. They cannot pay the fine and so they go to prison—for which we have to pay and which probably makes them worse—and they come out and do it again.
The object of this legislation—one with which I think everyone in the Committee and beyond would agree—is to try to stop what we called the "revolving door syndrome". My concern is that if people are fined at too high a rate or if they are chucked into prison—obviously the object of the Bill is to stop them going to prison—then the revolving door syndrome is perpetuated.
Therefore, in raising this point, I am questioning whether the level of fine and potential sentencing to prison is proportionate to the offences involved in this piece of legislation. I beg to move.
I assure the noble Lord that on summary conviction up to 51 weeks' imprisonment and/or a fine will be the maximum penalty when the relevant sentencing provisions introduced by the Criminal Justice Act 2003 come into force. Until that time, the maximum term of imprisonment will be three months. Where a defendant has tested positive on arrest or charge for a specified class A drug, indicating a possible addiction to drugs which may lead him into a life of crime, as the noble Lord has already indicated, it would be inappropriate to introduce a lower penalty and would, we believe, send the wrong message to the group.
One must bear in mind the very broad variety of sentences introduced by the Criminal Justice Act 2003. The whole menu is available, and the fine and the term of 51 weeks' imprisonment is the outer limit. We think that the penalty under this provision is therefore the same as that for the failure to provide a sample when requested to do so on arrest or charge. We believe that it is at the appropriate level and is proportionate. I invite the noble Lord to withdraw the amendment.
Again, that was a very helpful explanation. I am delighted to hear that a whole menu of appropriate penalties is available. I hope that the appropriate authorities will be looking at the lower end of that menu, particularly when considering someone who, as the noble Baroness said, has been tested for a possible addiction. If you have a possible addiction and you have been tested for it, that means that you are ill. We have identified someone who is ill, so immediately we up the sentence.
I have a feeling that, when people look back on this in a generation's time, the way in which we treat drug addicts in the first part of the 21st century will be considered in exactly the same manner as historians consider the way in which those two ghastly brothers treated poor old King George III. If one stands back and looks at the situation, one can see that it is immensely barbaric, apart from being an incredible waste of time and money. Nevertheless, we shall pray for the whole menu, and on that basis I shall withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 24 not moved.]
Clause 12 agreed to.
Clause 13 [Arrangements for follow-up assessment]:
[Amendment No. 25 not moved.]
Clause 13 agreed to.
Clause 14 [Attendance at follow-up assessment]:
[Amendments Nos. 26 to 29 not moved.]
Clause 14 agreed to.
Clause 15 [Disclosure of information about assessments]:
[Amendment No. 30 not moved.]
Clause 15 agreed to.
Clauses 16 to 20 agreed to.
Clause 21 [Inclusion of mushrooms containing psilocin etc. as Class A drugs]:
On Question, Whether Clause 21 shall stand part of the Bill?
The Bill has many problem areas, as the noble Lord, Lord Mancroft, so ably pointed out. Clause 21 has the air of having been slipped in at the last minute, and its removal would have no influence on the rest of the Bill. The clause seeks to classify so-called magic mushrooms as class A drugs alongside heroin, crack and cocaine.
Magic mushrooms grow wild all over the fields of England and have been enjoyed recreationally for many years. It is true that they contain a quantity of the substance psilocin, which in its pure and concentrated form is already classified as a class A drug in the Misuse of Drugs Act 1971. But experience tells us that the mushrooms themselves have a low danger to health relative to most other commonly used drugs and according to the Government's Talktofrank website, they are,
"not addictive in any way".
As I said at Second Reading on Tuesday, the point at issue is to what extent any government have the right in a free society to interfere in the personal choices of individual citizens and, with the excuse of protecting their health, to impose criminal sanctions on anyone who disobeys the rules. Government have every right and indeed a duty to educate and to warn the public, particularly the young, of the risks to personal health of all drugs, including alcohol and tobacco. Indeed, the campaign against smoking in recent years is a good example of what can be achieved by publicising potential harm to health.
Publicity and health warnings are one thing, but criminalising the enjoyment of a relatively harmless mushroom that grows wild in our fields is surely a step too far. Are farmers to become criminals because class A drugs grow on their land? That is absurd. The clause will drive the existing, modest trade underground and into the hands of criminals, and it will increase the burden on the already overstretched criminal justice system. I hope that the Government will agree to drop Clause 21 from the Bill.
I support the noble Lord, Lord Cobbold, for reasons that he may find hard to determine. I stand here to make a plea on behalf of the mushroom hunter. I have already disclosed my interest as a peasant farmer in France and a wine grower.
I want to refer to the rather improper remarks made by my noble friend Lord Mancroft on the subject of wine. I carry large quantities of wine in cars and trucks, and I sell it. Of course, when wine is in the grape, with maybe 14 degrees alcohol, it is not treated as alcohol or wine and regarded as dangerous. Wine and mushrooms go well together. Noble Lords will know that you may not shoot a wild boar during the hunting season when the grapes have not been picked. There is a relationship in the land that I have between the wild boar and the mushroom hunter. The hunters who hunt the wild boar hunt with guns. The hunters who hunt the mushroom remember the old adage that there are bold mushroom hunters, old mushroom hunters but no old, bold mushroom hunters. The mushroom is a very dangerous creature. There are over 2,000 of them. Will the Minister kindly let me know how many of them contain psilocin?
The Destroying Angel is a mushroom that bothers me. It is far more dangerous than the magic mushroom. I understand that in the United Kingdom there are about five different types of magic mushroom. They are only treated as class A drugs once they have been processed. There are problems with the difference between Jack o' lantern and Slippery Jack: I have forgotten which of those is deadly poisonous and which is not. We all may know of cepe, morel and chanterelle mushrooms and that their value is considerable. There has been a tremendous growth in mushroom hunting throughout Europe, including the United Kingdom, with groups from Switzerland, Austria and France coming over into certain parts of the world. It is a secretive business because the value of cepe mushrooms or others is very high.
I have a fear that if the Bill goes through, as is, genuine mushroom hunters may well pick up a mushroom or a fungus that is full of psilocin and thus commit a criminal offence. That matter is solved in many countries. Mushrooms are so deadly and dangerous that unless you are a competent person you cannot tell the difference. So normally you would pick them using surgical gloves. Poisonous mushrooms must never touch non-poisonous mushrooms, otherwise they will pollute them. You would take the mushrooms to the local pharmacist who will say "Yes, no, yes, no" and tell you how to cook them. In the United Kingdom, we do not have that knowledge. Is the Minister concerned in any way that the provision may offend against the European Convention on Human Rights? Is she concerned about protecting mushroom pickers? Does she or her department know anything at all about mushrooms?
I will add my voice to that of the noble Lord, Lord Cobbold, if it survives much longer, which it sounds as though it is not going to. I do not want to repeat what the noble Lord, Lord Cobbold, has said. He has listed most of the points, but I shall make three very short points.
First, my understanding is that—the noble Baroness may be able to help us on this—a ban on magic mushrooms in this country may not be legal under European law. I gather that there is an appeal to the European Court on the subject because the things are sold completely legally throughout Europe. It would presumably be some sort of interference with trade, bearing it in mind that they are legally sold in hundreds of shops around the country at the moment.
Secondly, has the plan to make magic mushrooms into a class A drug been referred to the Advisory Council on Misuse of Drugs? Thirdly, the legislation is simply disproportionate. Magic mushrooms really do not cause any harm at all, they cannot be addictive and have never caused a public order issue. The idea that they should be put into the same category as heroin and cocaine is so ludicrous that it makes the provision a laughing stock. The legislation will have no effect on the use or misuse of magic mushrooms. Most people will not take any notice of it, understand it or, probably, even know of it. The only effect that it might have is a minor, inadvertent and rather undesirable effect on the poor people who inadvertently grow them or have them on their land and those who sell them not realising that they are illegal.
The provision is disproportionate and has no place in the Bill. It would be much better to remove the clause. So I support the noble Lord's argument.
My noble friend said at Second Reading that magic mushrooms could have damaging, hallucinatory effects equivalent to those of LSD. That is certainly not my clinical experience. LSD can cause alarming hallucinations that may have lasting effects. But I have never met anyone who has come to any harm from the use of magic mushrooms. The house in which I used to live when my boys were growing up backed on to Hampstead Heath. They frequently went on magic mushroom foraging expeditions with their friends. Neither they nor their friends had anything other than pleasurable experiences as a result.
I shall cite an e-mail that I received from a probation officer recently. Other noble Lords may have had the same message. It states:
"Being a probation officer, I have helped people who have been addicted to alcohol, ecstasy, cannabis, heroin and crack. But I never met a person who has been addicted to magic mushrooms. They are totally non-addictive and grow naturally. Why ban them?".
Indeed, following up what the noble Lord, Lord Cobbold, said, how can you ban something that grows naturally on UK soil?
My noble friend also said in her speech that clarifying the status of fresh magic mushrooms as a controlled drug will, "we hope"—she said—decrease the trade. I suggest that that is unlikely to occur. In fact, the trade will go underground into criminal hands; the strength will probably be increased and unknown. As both the noble Lords, Lord Mancroft and Lord Cobbold, said, it will occupy police time unnecessarily, as is the case with other controlled drugs. As other noble Lords have said, it would do no harm just to drop the clause, if the Government must have the Bill.
I hear the words, "Drop it", coming from some parts of the Chamber. I am unable to drop the clause for the following reasons. Perhaps I may clarify something that I said on Second Reading. The clause will clarify and extend the law on magic mushrooms and remove any doubt that the importation, exportation, production, possession or possession with intent to supply and the supply of fresh mushrooms, as well as prepared ones, is an offence.
On Second Reading on
It may not be apparent to all noble Lords that in the past two years there has been a dramatic increase in the number of outlets selling imported fresh magic mushrooms and there is growing concern about the impact that they have on public health. The Government estimate that more than 400 establishments in the United Kingdom are selling those drugs and are mostly supplied with imported magic mushrooms—predominantly from Holland. Customs and Excise estimates the import for 2004 to be between 8,000 and 16,000 kilogrammes.
I hope that your Lordships will agree that it is undesirable that those drugs be on open sale in the high street. Contributions in this House and another place indicate that there seems to be something of a misconception about the harms and potency of magic mushrooms. Let us be in no doubt that they are highly hallucinogenic and equivalent in effect to LSD. I hear what my noble friend Lord Rea says, but, from the information available to the Government, magic mushrooms appear to be particularly harmful to those with a mental illness or an underlying mental health problem and can precipitate psychosis. They can be very harmful to those with a heart condition and users are also vulnerable to self-harm while under the influence of mushrooms. As with LSD, those misusing mushrooms may experience negative flashbacks. We have therefore decided to take steps to remove any doubt over the legality of their importation and commercial sale.
At present, under the Misuse of Drugs Act 1971, the chemicals inside magic mushrooms—psilocin and psilocybin—constitute class A drugs. Magic mushrooms themselves constitute a class A drug if they have been prepared or are in the form of a product. As such, importation, exportation, production, possession, possession with intent to supply, or supply of those mushrooms is an offence. It is for the courts to determine, on a case-by-case basis, what constitutes a preparation or a product. A number of those involved in the commercial sale of magic mushrooms argue that picked fresh magic mushrooms for, or on, sale do not constitute a preparation or a product. We disagree.
In December 2004, one judge recommended that Parliament consider new legislation to clarify the legal position. The law change proposed in the Drugs Bill would do that, putting an end to uncertainty by making it clear that all magic mushrooms are class A drugs whatever form they are in.
The taking of magic mushrooms is much more prevalent than some may be aware. The British Crime Survey for 2002-03 showed 180,000 16 to 59 year-olds using magic mushrooms in that year. All indications are that the numbers for 2003 and 2004 will show a dramatic increase in that number, underlining why it is important for Her Majesty's Government to take this measure.
These measures are aimed at addressing the relatively new phenomenon of imported hallucinogenic mushrooms. As the noble Lord, Lord Mancroft, said at Second Reading, varieties known as liberty cap mushrooms are indigenous to the United Kingdom. Her Majesty's Government have already considered how to consider those mushrooms in the context of this amendment to the Misuse of Drugs Act 1971.
The United Nations Convention on Psychotropic Substances 1971 places psilocin in Schedule 1, the highest level of control. So there is international consensus that those substances present certain serious harm. I understand the concern that noble Lords may have about picking magic mushrooms. I emphasise that the purpose of this offence is to cease the sale and importation of psilocybe cubensis mushrooms. The noble Lord, Lord Selsdon, asked how much this Government know about mushrooms. A great deal, it would appear. How much does this Minister know? My Lords, she is learning all the time.
Before my noble friend sits down, does she feel that banning magic mushrooms and thus driving them into criminal hands underground makes control easier than if they are a perfectly legal substance? Would it not be easier to monitor what is going on if they were on sale in the open market? It would also be possible for environmental health officers and others to check on the strength of magic mushroom preparations, whereas, after the passing of this Bill, they will go out of sight.
I repeat what I have said already. Of course, magic mushrooms in their prepared form are already classified as class A drugs. That classification has been endorsed on an international level in the way that I have just indicated. The difficulty has been in the way matters have been dealt with when coming before the court and there is an assertion that, although the constituents are present in fresh mushrooms, they are not a preparation and they are not therefore covered.
The courts have indicated that that lack of clarity was causing difficulties. We have sought to deal with that in the way that I have just described. It is an important issue because these drugs—and drugs they are—are being imported and sold for considerable profit, and are causing real harm. It is that real harm with which we really have to deal.
I thank the noble Baroness for that response. On listening to the technical explanation that she has given, it seems that she is saying that prepared elements are already categorised as class A. But this clause will change ordinary, unprocessed, fresh mushrooms growing in the fields of England from being just nothing to being a class A drug, which I think is unacceptable.
Because this clause does not affect any other part of the Bill, I feel that we are justified in testing the opinion of the House.
My Lords, I beg to move that the Bill do now pass. In doing so, I thank all noble Lords who have participated in the Bill and given it such a swift passage, including my noble friend on the Woolsack. I also take this opportunity to thank members of the Bill team, who have worked incredibly hard, and all those who have ensured that we have had our Marshalled Lists in time.
Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)
On Question, Bill passed, and returned to the Commons with amendments.