Prisons (Substance Testing) Bill - Second Reading

– in the House of Lords at 11:06 am on 16th April 2021.

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Baroness Pidding:

Moved by Baroness Pidding

That the Bill be now read a second time.

Relevant document: 37th Report from the Delegated Powers Committee

Photo of Baroness Pidding Baroness Pidding Conservative

My Lords, it is my privilege to move the Second Reading of the Prisons (Substance Testing) Bill, which was introduced by the right honourable Dame Cheryl Gillan in the other place. Members across the House will be aware of the news that Dame Cheryl sadly passed away earlier this month. I hope that noble Lords will understand my wish to take a few moments to reflect on this immense loss. I speak as someone who counted Dame Cheryl as one of my dearest friends. I had the privilege of knowing her for 30 years, from when I took part in her selection by the Chesham and Amersham Conservative Association in my role as Young Conservatives chairman through to now as president of that same association.

I want to pay tribute to Dame Cheryl’s remarkable career. She was the longest-serving woman MP on the Conservative Benches, but she was so much more than that. She was kind, empathetic, bright, tenacious, articulate and knowledgeable, and, as one of her former parliamentary colleagues said, she knew what being a colleague was all about. Cheryl was a remarkable parliamentarian and one who had a reach beyond any one political party. She was a great advocate for her constituents and will be sorely missed. My condolences go to Dame Cheryl’s family, friends and staff. I pay respects to her for her commitment, passion and dedication to the excellent causes that she championed and I hope that this Bill can represent another significant contribution towards an already impressive legacy.

I also pay tribute to Richard Holden MP, who efficiently and smoothly guided this Bill through its various stages on her behalf. The Bill had a successful passage and received unqualified support from all sides in the other place. I trust that it will be similarly welcomed and supported in your Lordships’ House. It would make our prisons and young offender institutions safer, more secure and, ultimately, better environments for rehabilitation.

The misuse of drugs is one of the biggest challenges faced by our prisons and young offender institutions. A survey by Her Majesty’s Inspectorate of Prisons in 2019-20 showed that 40% of female prisoners and 45% of male prisoners found it quite easy or very easy to get drugs in prisons. Psychoactive drugs and the misuse of prescription-only medicines and pharmacy medicines in particular are a relatively new problem for our prisons and young offender institutions, but they are a growing and dangerous problem. We must take further action to identify prisoners and young offenders with substance misuse issues and ensure that they are offered the appropriate treatment. The Bill would boost the capability of prisons and young offender institutions in England and Wales to test for the use of illicit substances and would make key progress in combating the prevalence of drugs in prisons.

Members in both Houses are well aware of the scourge of drugs both in prisons and out in the wider community. The scale of the problem with drugs in prisons is demonstrated by the available data. In the year to March 2020, there were almost 22,000 incidents of drug finds in prisons in England and Wales alone. The highest number of incidents was over the past decade, with 182 kilogrammes of illicit drugs being recovered.

Drug use drives the increasing violence that we have seen in prisons. Debts are enforced, discharged or avoided through assaults on other prisoners or staff and incidents of self-harm. This is our chance to make a productive change to the prison drug testing framework, ensure that those with substance misuse issues are referred to the appropriate treatment and disrupt continued violence within our prisons and young offender institutions.

The Prison Service and the Youth Custody Service currently have the legal authority to test for controlled drugs, as defined under the Misuse of Drugs Act 1971, and specified substances listed in Schedule 2 to the Prison Rules 1999 and Young Offender Institution Rules 2000. In order to add a new drug to the list of specified substances, the Government need to individually add each and every new compound to it through secondary legislation. That process is resource-intensive and inefficient. Most importantly, it causes operational delays for prisons and young offender institutions, limiting their ability to deal with emergency healthcare cases and take appropriate disciplinary action. Despite the Prison Service and the Youth Custody Service updating the list at regular intervals, ill-intentioned drug manufacturers and chemical experts are able to quickly get around the law by producing modified variations of these drugs, meaning that prisoners and young offenders are no longer able to be tested for them and their use goes undetected.

I turn to the contents of the Bill. Its response to this issue is both simple and straightforward. The Bill adopts the definition of “psychoactive substances” provided by the Psychoactive Substances Act 2016, which will allow the Prison Service and the Youth Custody Service to test prisoners for any and all psychoactive substances now and in future. Similarly, the Bill permits prisoners and young offenders to be tested for the illicit use of prescription-only medicines and pharmacy medicines as defined by the Human Medicines Regulations 2012. The Bill also provides an express power for the use of prevalence testing, which, through the testing of pooled and anonymised samples, allows prisons and young offender institutions to identify new drug types in circulation and tailor treatment services and security countermeasures accordingly.

I am convinced that this Bill will have a meaningful effect, future-proofing the drug testing framework and enabling it to quickly respond to a rapidly changing modern drugs trade. This will allow the Prison Service and Youth Custody Service to take the appropriate action needed to tackle the threat of drugs, whether that be in referring prisoners and young offenders into healthcare treatments or in pursuing sanctions against those involved in the distribution and use of drugs.

In conclusion, I earnestly hope that your Lordships will recognise the importance of making these changes, and speedily. We must act as soon as possible. We know that those who seek profit from drugs will stop at nothing to continue harming our prisons and young offender institutions. We must meet them with at least equal vigour in our measures of disruption. I appreciate that timescales are tight as we come towards the end of this parliamentary Session, but I sincerely hope that this Bill will be on the statute book. I look forward to hearing noble Lords’ contributions in this Second Reading debate and hope that there will be support from across the House. I beg to move.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 11:14 am, 16th April 2021

My Lords, I support the Bill and congratulate the noble Baroness, Lady Pidding, on taking it over and moving this Second Reading so eloquently. I, too, pay tribute to Dame Cheryl Gillan, with whom, when she was Welsh Secretary, I spent a pleasant hour discussing Welsh affairs in her office, which I had occupied for six years.

We should all take an interest in what happens in our prisons. Earlier in my life, I had planned to do a little to improve the rehabilitation of prisoners. I fear that age and other issues have crowded out that noble aim. Over the years I have visited many prisons, mostly in the south of England, in a professional capacity as a mainly criminal defence lawyer. However, my first visit was outside my profession. As a young MP, I took my father-in-law, who was a Welsh publisher and did so much for Welsh publishing, to see one of his authors in prison: the illustrious Waldo Williams, who was jailed for refusing to pay that part of his income tax that went to defence expenditure. I had to stay in the outside foyer—I was only an MP—but my father-in-law was a senior magistrate and prison visitor and he was able to see his author.

Having been to many prisons over the years, usually to consulting rooms or foyers for consultations with my clients, I never came across any suggestion of drug taking or anyone being under the influence of drugs. Some of the consultations in long fraud cases would take the best part of a day. Things have changed. The present legislation allows for the drug testing of prisoners. The aim—perhaps it is too ambitious—is to allow no drugs in prisons. I agree with this aim, but fear that this is not the case at present. As the noble Baroness has explained, the amending legislation would allow the prisons to catch up with changes and developments in the importation of drugs. My understanding is that there is an increased importation of psychoactive substances and pharmaceutical medicines.

In his last annual report, the Chief Inspector of Prisons argued:

“For many years safety and decency in prisons has been undermined by the prevalence of illicit drugs and the impact they have in generating debts, bullying and violence.”

This is a terrible indictment of the state of affairs. I fear that the Bill is vitally needed to deal with such drugs. The prisons are having to deal with a moving target; that is why we need the flexibility that the Bill allows and I therefore welcome it very much. It will be a helpful tool to deal with present developments. In my professional life, I have seen too many effects of the damage that drugs have done to individuals. I commend this much-needed Bill and congratulate the noble Baroness on moving it so eloquently.

Photo of Lord German Lord German Liberal Democrat 11:18 am, 16th April 2021

My Lords, I, too, start with a short tribute to the late Dame Cheryl Gillan, in whose name this Bill was taken through the House of Commons. Cheryl and I were both brought up in Cardiff and, although her politics are not mine, we shared a deep love of music. We have been deeply involved in the work of the choir of this Parliament—she as a founder member and former treasurer and I as the present chair. In a book soon to be published charting the 20-year history of this great parliamentary institution, Cheryl wrote that the Parliament choir shows a gentler side of our democratic institution, which has proved itself to be capable of producing great beauty and harmony. Her work in bringing our Parliament and the German Bundestag closer together is a tribute to her. I am sure that we all appreciate this as part of her legacy to this institution.

In the sense of the great harmony of which Dame Cheryl wrote, I welcome the intention of this Bill, narrow in scope as it is. Managing drug abuse is a complex matter. The Prison Drugs Strategy splits its first of three aims, “Restricting Supply”, into 18 action areas, one of which is drug testing. If it is one of 18 actions in meeting the first of the three aims of that drug strategy, it demonstrates the complexity of this issue. The Bill seeks, first, to future-proof the myriad drug variations that continually appear and, secondly, to properly assess the prevalence of drug use on the prison estate. These are narrow but important ambitions.

I will raise three consequences of the Bill. First, in getting a true picture of drug misuse on the prison estate, what do the Government do with this information? Is it to broaden understanding, to test assumptions, to influence policy change or all three of these? If so, then it is legitimate to know how Parliament will be informed of these outcomes and in what timescale. So, in replying, can the Minister tell the House how the Government propose to publish these outcomes in a form that Parliament can analyse and discuss?

Secondly, testing will undoubtedly demonstrate more drug use than at present. The consequence of this increase in the number of prisoners misusing drugs is that there will also be an increase in demand for drug treatments. The Government’s Explanatory Notes state that the Bill will have few direct financial consequences, but they only refer to the increased costs of testing. This misses the importance of the growth in demand for adequate drug therapeutic support for substance misuse treatment. So will the Minister explain how increased demand for drug-misuse treatment will work without additional funding? From the Explanatory Notes, it would appear that these services will be spread more thinly across a wider cohort of prisoners.

Finally, the new knowledge gleaned from the prevalence of drug testing will require research and analysis—so, in replying, can the Minister tell the House what provision has been made for research and analysis and who will carry this out? With these three questions, I welcome the Bill, and I hope that it has a speedy passage.

Photo of Baroness Watkins of Tavistock Baroness Watkins of Tavistock Deputy Chairman of Committees 11:21 am, 16th April 2021

My Lords, it is a pleasure to follow on from other noble Lords and to lend my support to this Private Member’s Bill, so coherently presented to this House by the noble Baroness, Lady Pidding. I also acknowledge her tribute to the late Dame Cheryl Gillan. My brother and sister-in-law, John and Sarah Watkins, have been supportive constituents of hers for many years, and I extend my deepest sympathy to her friends and colleagues and to the noble Baroness, Lady Pidding, and her partner, Tim Butcher.

The Bill’s aim is to enhance the provision of substantive testing in prisons and similar institutions. We have seen the exemplary speed with which vaccines have been developed globally in response to the Covid-19 pandemic. This is medical and scientific innovation at its best, yet, even a decade ago, it would not have been feasible to achieve such outcomes so quickly.

Some of the techniques used in medicine development and the refinement of current drugs are used by criminals, with the sole intent of changing chemical elements while maintaining a drug’s ability to encourage addiction. Under current law, because the psychoactive substances that can be tested for in prisons are listed—and, to add to the list, secondary legislation is required—many substances currently abused by prisoners, which often play a role in illicit prison economies, cannot technically be screened for through anonymised prevalence testing.

This Bill is designed to improve the capability of prison services in England and Wales to test for a wide range of illicit substances, including new psychoactive substances, as they emerge, which has for example been the case with spice. This is a highly addictive substance that, as I have said before in this House, is prevalent in many prisons, causing severe problems for prisoners themselves and putting prison officers in at-risk situations because the drug can trigger erratic and aggressive behaviour in users.

However, I am concerned that the Explanatory Notes for the Bill imply that there is no expectation that costs associated with prevalence testing will increase. However, it seems reasonable to expect that laboratory costs will increase in line the number of substances in samples that are screened for. If the Bill is passed, it is acknowledged that greater investment in mental health services will be necessary to treat problems associated with identified addiction to both illegal and, in some cases, prescribed medicines. Could the Minister explain whether the Government will commission an impact assessment to identify the real needs of successful health intervention in prisons, and especially in youth offender institutions, associated with addiction? Screening may well make prisons safer, but, without readily accessible drug rehabilitation programmes, prisoners are unlikely to benefit significantly from the Bill.

I lend my unreserved support to the Bill, but question the extent to which it will make a real difference to the quality and safety of prisoners’, young offenders’ and prison officers’ lives without greater investment in the Prison Service more widely.

Photo of Baroness Sater Baroness Sater Conservative 11:25 am, 16th April 2021

My Lords, I am honoured to speak in support of this important Bill, which my dear friend the late Cheryl Gillan introduced as a Private Member’s Bill in the other place. Cheryl was a great mentor and friend to so many; I was lucky enough to have encountered this when I first met her 30 years ago. She was so kind and generous with her time and will be sorely missed. She is a huge loss to the other place and to politics in general.

The overarching purpose of the Bill is to help ensure that ultimately our prisons and young offender institutes are not only safer and more secure but, importantly, better environments for rehabilitation. We know that drugs affect the mental and physical health of prisoners, and the use of psychoactive drugs and the misuse of prescription-only and pharmacy medicines is a relatively new but growing problem in our criminal justice system. It is vital that we have a robust process in place that is not only effective but able to respond to the rapid changes in the market for illicit and legal substances. The Bill would make it easier for prison officers to identify these substances and, in turn, lead to better and more effective treatments.

While important, better testing in isolation will not necessarily lead to the better rehabilitation outcomes that we are all determined to see. From the Black review, commissioned in 2019, we know that an estimated one-third of the prison population is there for drug-related crime. Of these, 40% have been convicted of specific drugs offences, such as trafficking, while 60% are serving sentences for crimes related to drug addiction, such as theft.

Moreover, the review highlights that the lack of purposeful activity—and the sense of boredom and hopelessness that it causes—is a “significant factor” in driving the demand for drugs. Purposeful activity including, physical activity and sport, can contribute to better mental and physical health among prisoners. Data also shows that prisons that deliver these activities have lower rates of positive drug tests and drug finds.

We send people to prison for punishment, public protection and rehabilitation. Only by prioritising rehabilitation can we reduce reoffending and, in turn, the number of future victims of crime. The Bill is an important step to that ultimate aim, and, although it makes only minor changes to the testing regime currently in place, improving this capability will make a significant impact in tackling the prevalence of drugs in the criminal justice system, improving those all-important rehabilitation outcomes.

Photo of The Bishop of Gloucester The Bishop of Gloucester Bishop 11:28 am, 16th April 2021

My Lords, I add my condolences to those already expressed regarding the sad death of Dame Cheryl Gillan. I echo others in affirming that it is her commitment to reform that means that we are discussing these issues today.

I declare my interest, as stated in the register, as Anglican bishop for prisons in England and Wales. It is a great privilege for me to visit a variety of establishments. In conversations with prisoners, governors and chaplains, you get a sense of those issues that, if tackled, could have a real impact. Drug use within prisons is one of those issues.

In a visit to a prison just two weeks ago, I heard about psychoactive substances being smuggled in on letters and the back of postage stamps. This makes it incredibly hard to prevent, and attempts to do so take up vital time and resource which need to be used more appropriately elsewhere. Rehabilitation must be key in our prison system—prisons should be places where the root causes of offending can begin to be addressed. I will not deviate at this point.

As a Christian, I believe in hope and the possibility of change, and the last thing that prisoners should have access to is a drug to which they are already addicted or that is a new addictive substance. They should also not be tempted by a trade in these substances. Furthermore, staff and volunteers in prisons should be protected from the effect of these substances, which is not the case at present.

I therefore support the Bill and support a testing regime, delivered appropriately, which would be responsive to new drugs as they emerge. Of course, all this needs to be set within a wider picture of rehabilitation and a holistic approach to all issues and factors impacting the lives of those sentenced. Further comment on that can wait for a different Bill, which I hope will come to us from the other place in the not too distant future. For now, I welcome the Bill and its potential for good and not harm.

Photo of Lord Farmer Lord Farmer Conservative 11:30 am, 16th April 2021

My Lords, I too begin by acknowledging the hard work of the right honourable Cheryl Gillan, about whose passing away we have all been saddened to hear today, in bringing forward the Bill in the other place. Thanks must go also to Richard Holden MP, who steered the Bill in the Commons when necessary on Ms Gillan’s behalf, and to my noble friend Lady Pidding for taking it through this place and for her excellent introduction today.

My own interest in the Bill lies in the fact that the endemic proliferation and consumption of illicit drugs across the prison estate are hugely detrimental to prison safety and the relationships that are so important to prevent reoffending. Both safety and relationship concerns must be addressed if rehabilitation is to be a realistic aim of our prison system. In 2016-17, when I was conducting the review on strengthening prisoners’ family relationships, the Ministry of Justice’s own data showed that prisoners who received family visits were 39% less likely to reoffend after release than those who did not, at a time when reoffending was running at 43%.

In my first review, Peter Clarke, then Her Majesty’s Chief Inspector of Prisons, described how many prisons are

“unacceptably violent and dangerous places” and said that much of this is linked to the harms associated with drugs. To avoid these harms, my review indicated, for example, that quality time spent with family is a key motivator for a prisoner and a parent to stay clean. I quoted one father, who said that it was tempting to use drugs to get through a tough day, but:

“If part of your … routine is to do homework with your child or ring home … to hold a quality conversation with her, this is a strong deterrent to taking a substance that would mean you were unable to do that because you were ‘off your head’.”

An individual who has easy access to drugs and less will power risks missing out on their child or children’s lives and entrenching in them the sense of being abandoned by their mother or father. Reducing the prevalence of drug use in prisons is essential for bringing greater stability and structure to prisoners’ and their children’s lives. Data shows that a child of a prisoner has more than a 60% chance of being imprisoned themselves.

This is a good, tightly focused Bill, which I hope we can get on to the statute book before Prorogation so that we can make much-needed progress in this important area of rehabilitation.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 11:33 am, 16th April 2021

My Lords, I strongly support the intention behind the Bill and am glad that the noble Baroness, Lady Pidding, began her excellent introduction with a tribute to the late Dame Cheryl Gillan, whose Bill it is, but I admit to being worried about the practicalities of delivery.

I have always thought that the Ministry of Justice and Her Majesty’s Prison and Probation Service set too much store by the effectiveness of mandatory drug testing, which, far from being the important tool that they claim, proves nothing except how many people test negative and has always been capable of manipulation.

To illustrate how easy manipulation is, when I was chief inspector, I once went into a cell and noticed some certificates on the wall. On asking the prisoner what they were for, I was told that they were for testing drug-free, which it was known he was, and that if I came back the next month, there would be another one. Another time, I went into a prison where there were alleged to be no drug users, which I simply did not believe. I found that the prison made a practice of testing only vulnerable prisoners, who were notoriously drug-free. I ordered an immediate test of the whole prison, which found that 47% were users.

The effects of apparently freely available psychoactive and other substances have been well documented, including increased violence against staff and other prisoners. The absence of, or the inability of many prisoners to access, treatment programmes is also a worry. I would be happier if, in addition to trying to prevent substances getting into a prison, there was evidence of a desire to achieve better testing and more access to treatment.

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth Conservative 11:37 am, 16th April 2021

My Lords, it is a great pleasure to follow the noble Lord, Lord Ramsbotham, who certainly knows a great deal about this area. I thank my noble friend Lady Pidding for introducing this legislation into our House and Richard Holden for the work that he has done in the House of Commons.

I hope that the House will indulge me if I say a few words about my right honourable and much-missed friend Dame Cheryl Gillan. Cheryl was a good friend as well as a close colleague, particularly when she was shadow Secretary of State for Wales and later Secretary of State and I was leader of the Welsh Conservatives in what is now the Welsh Parliament. We often agreed; we usually agreed, but I can remember on one occasion having a furious row with Cheryl over some footling issue—I cannot even remember what it was now—and I had been dreading meeting up for the supper that the two of us were due to have that evening. I need not have worried. I walked into the restaurant and Cheryl came over to me and gave me a big hug—in the days when we could still hug—and said to me, “I think you’re wrong, but we’ll do it your way. Now, let’s have the evening and not discuss politics.” It was typical of Cheryl. She was always fun to work with, a real people person, dedicated, hard-working and disarming. I miss her a lot. This Bill, I hope, will be a fitting tribute to Cheryl Gillan’s work and character.

It is clear that drug testing in prison has been a challenging issue because the chemical composition of psychoactive substances is subject to such rapid change. This has meant that new psychoactive substances are often created with minor alterations to the chemical make-up of the previous substance, but, with each alteration of the substance, there has to be an amendment to the law to provide for it. This is time-consuming and causes delay. A further issue is that not all prescription and pharmacy medicines are included in the list of drugs that a prison can test for. Furthermore, there is currently no legislative basis for prevalence testing, an anonymised process to help identify any new substances being found routinely. The Bill, very sensibly, therefore corrects all those problems with the existing law.

The Prison and Probation Service has indicated and provided evidence to show that psychoactive substances in prison have become a significant problem. This measure is much needed. I am proud to lend strong support to it, and pleased that it seems to be reflected across the House, and I very much hope that this will become law before prorogation. Once more, I congratulate the noble Baroness, Lady Pidding, for championing this measure in your Lordships’ House, and I strongly support it.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated 11:40 am, 16th April 2021

My Lords, I take this opportunity to congratulate the noble Baroness, Lady Pidding, on bringing forward this legislation and offer my sympathies to the family of the late Dame Cheryl Gillan, who originally introduced this Bill in the other place. I agree with the purpose and objectives of the Bill, which would amend existing legislation to allow prisons to test for a wider range of drugs, including psychoactive, prescription and pharmacy medicines, without the need regularly to change the legislation in future. I take note of what the noble Lord, Lord Bourne, has just said—that psychoactive substances have certain chemical properties which can change from time to time. Therefore, the prison authorities and the appropriate department has to be on top of this issue to protect and safeguard prisoners.

Undoubtedly, the misuse of drugs is one of the biggest challenges facing the criminal justice system. In many cases, it mirrors what exists in the wider community, but often a custodial sentence will mean that it is the first time that prisoners come into contact with more hardened criminals, and bullying and intimidation can take place in the misuse of drugs. In many cases, the misuse of substances is an intergenerational and international issue.

The punitive element of imprisonment means the loss of an individual’s liberty. A successful rehabilitation is often dependent on isolating them from the negative factors in their lives, which have contributed to their offending. Many arrive in prison with significant diagnosed and undiagnosed healthcare needs, and a number struggle with the rigour and restrictions of the prison regime. Some will self-harm or become suicidal with prison life, and the challenges for prison and healthcare staff are real and omnipresent.

I am very happy to support this legislation. I have certain issues that I would like to propose to the Minister regarding the additional costs involved in implementing this legislation and other aspects of parliamentary scrutiny. Would it be possible for Parliament to receive an annual report on its implementation? I am in no doubt that comprehensive drugs-testing in prisons is required. Psychoactive substances are often used alongside other drugs, and the supply of drugs is also a significant cause of violence, intimidation and self-harm across the prison estate.

Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench 11:43 am, 16th April 2021

My Lords, I join colleagues in their tributes to the late Dame Cheryl and support the Bill which is part of her legacy. I do not have anything like the expertise of many noble Lords on this subject today, unlike my noble friend Lord Ramsbotham, whose concerns I endorse. However, for many years I was trustee of the Koestler Trust, which takes the arts into prisons. Indeed, I went to Wormwood Scrubs to see this in action. This links into the more general point that I seek to make, which the Government’s own 2019 review, the Black review, described as

“the link between the quality of the prison and use of drugs”.

It found that a lack of purposeful activity and the sense of boredom and hopelessness that it causes was a significant factor in driving the demand for drugs. The review highlighted the connection between drug use and unrest and violence in prisons, stating that these issues

“disrupt the chances of recovery for those with pre-existing problems and create opportunities for violent organised crime groups to make significant profits”.

In my maiden speech in 2013—how the years do pass—I cited the case of a man to whom we in the Koestler Trust supplied the use of a guitar. The offender wrote to thank me; it was a very moving letter, and I have never forgotten it. He said:

“Playing this instrument has completely changed my life and I really think that had I had this means of self-expression when I was young and in a state of considerable turbulence I might not now be serving life for murder.”

I understand that a Conservative Government feel strongly that prison should not be some sort of holiday camp, but I fear we have gone too far in the other direction. Prisoners are often locked up for most of the day with little to prompt rehabilitation or get the imagination going, so no wonder that drugs offer a form of escapism. Of course, prisons need to be able to test for the ever more complex drugs being used and manufactured, and I have no quarrel with the purpose of this Bill in that respect. However, it addresses the effect and not the cause. I have said before in your Lordships’ House that I would love the Government to at least study some of the prisons in the Netherlands and Scandinavia, where they have had remarkable success in reducing repeat offending and starting offenders on the map to a more constructive way of life.

Photo of Lord Cormack Lord Cormack Conservative 11:46 am, 16th April 2021

My Lords, it is a joy to follow one of the most civilised Members of your Lordships’ House, a man who presents my very favourite radio programme every Sunday at 12 noon. There is a plug for him.

I am delighted to congratulate my noble friend on an admirable, succinct and precise introduction of a very important measure. I pay my tribute to the late Dame Cheryl Gillan. I think I am the only one speaking in this debate who actually knew her and valued her as a parliamentary colleague, because we sat together in the House of Commons. I greatly valued her contributions. She was a classic Member of Parliament who always followed the Churchillian dictum of putting country, constituency and party in that order, as was evidenced by her brilliant campaign on HS2, although alas it was not successful.

The campaign that we are talking about this morning is one of very considerable importance. I had two prisons in my former constituency, both of them visited by the noble Lord, Lord Ramsbotham, a brilliant chief inspector. Of course, I was always very concerned—and others have mentioned it this morning—about the prime purpose of prison, which should be to rehabilitate. Reading some of the tributes to the late Prince Philip, the Duke of Edinburgh, this year, I see that one of his great issues earlier in his life was prison reform. He believed that sentences should be divided into two: a short period in prison and a longer period of rehabilitation. Of course, that is not always possible, but what is not possible ever is rehabilitation while drugs are being trafficked, circulated and taken. It was a bad enough problem 10 years ago, when I ceased to be a Member of Parliament; it is a far worse problem now. Prisons are being totally corrupted by the circulation and trafficking of drugs and the organised crime within prisons.

The classic feature of this Bill is that it will make it possible to deal more speedily with the issue, as drugs proliferate and varieties proliferate. I very much hope that no one will attempt to amend the Bill. It is not perfect—no Bill ever is—but it is a Bill that deserves our wholehearted and united support. I very much hope that it will get it and not be amended, so that it can pass speedily on to the statute book and be a permanent memorial to a very fine Member of Parliament.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 11:50 am, 16th April 2021

My Lords, I add my own tribute to those already given to Dame Cheryl Gillan both for her commitment to the work and success of the choir—I have been a member for many years—and for her commitment to Wales as Secretary of State. The noble Lord, Lord Cormack, pointed out only a moment ago that she was a person who put country, constituency and party in that order, and she demonstrated that as Secretary of State. I also congratulate the noble Baroness, Lady Pidding, on her clear exposition of this Bill.

However, I have some concerns. In short, the main thrust of this Bill is compulsorily to take samples from prisoners for the purpose of scientific research. If prisoners refuse to co-operate, they commit an offence against the Prison Rules for refusing to obey a lawful order. Article 8 of the European Convention on Human Rights says that:

“Everyone has the right to respect for his private … life … There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

This Bill is concerned not with the detection of crime but with the gathering of information on an anonymised basis. It is not a criminal offence under this Bill to have substances in the blood, but it would be a crime simply to refuse to give the sample.

This Bill will be tested to determine whether it is in breach of Article 8. Because it is a Private Member’s Bill, it does not require certification by the Minister. The taking of a blood and saliva sample against the subject’s will constitutes a compulsory medical procedure which, even if it is of minor importance, must consequently be considered as an interference with his right to privacy; that is the case of Jalloh v Germany in the European Court of Human Rights. In Caruana v Malta, the court considered that the taking of a buccal swab was not a priori prohibited in order to obtain evidence relating to the commission of a crime in which the subject of the test was not the offender but a relevant witness. Taking a sample to prove a criminal offence is one thing; to take a sample for research is another.

I must make it clear that, like the noble Lord, Lord Farmer, I am very concerned about the existence of substances circulating in prisons. I join with the noble Baroness, Lady Pidding, in condemning the scourge of drugs in prison. A prisoner from Blaenau Ffestiniog died from smoking spice in Berwyn prison in March 2018; I have spoken of this before—it is Britain’s largest prison and the second largest in Europe. The coroner said that he was concerned about the continuing accessibility of drugs to inmates at that institution and that there was a sense of dread in his office over the number of deaths they would have to deal with. There is recent anecdotal evidence that all sorts of substances circulate through there. Visitors to the prison have been convicted: there was one case in November 2018 for bringing in a book soaked in spice, and another in October 2020 for bringing in letters similarly treated—a practice to which the right reverend Prelate the Bishop of Gloucester has referred. Every effort should be made to prevent the smuggling of drugs and other substances into prisons.

However, there is a solution in hand. A trial scheme was announced in February, to be operated in 12 prisons in north-east England, Yorkshire and Humberside, whose findings will help the Prison Service to target anti-drugs measures. The monitoring of wastewater for traces of drugs has been pioneered in Australia. Sewage monitoring is regularly carried out in Britain to monitor the spread of viruses, including Covid-19. I am sure that the noble Lord, Lord Ramsbotham, would approve of this approach. The Prisons Minister, Lucy Frazer QC, told the Daily Telegraph in February:

“Right across the estate, we’re increasingly using technology to help rehabilitate offenders and to prevent drugs and phones from entering prisons. This pilot will help monitor drug prevalence in prisons, detect new and emerging psychoactive substances and ultimately contribute to reducing crime behind bars.”

Perhaps the Minister can tell us how this trial is proceeding. Clearly, it is intended to answer the main purpose of this Bill—prevalence testing—without any breach of Article 8.

I have other questions about the Bill. Are random tests proposed, as opposed to targeted tests? At what point are the tests anonymised? The Explanatory Notes say that a purpose is to ensure the prisoner can have medical treatment, which does not suggest anonymity. The Bill says that any substances can be tested for; how is that limited? Finally, as my noble friend Lord German asked, what is the purpose of the tests? Is it to criminalise other substances if found? It does not seem to me that the suggestion that the Bill is proposed in order to prevent delays in criminalising is a very good one.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice) 11:57 am, 16th April 2021

My Lords, I open by congratulating the noble Baroness, Lady Pidding, on introducing this piece of legislation. It had a fair wind in the other place, and I expect that it will get a fair wind here too—it certainly will from these Labour Benches.

Dame Cheryl Gillan has been remembered by many speakers in this debate. I knew Dame Cheryl through numerous criminal justice-related all-party groups of which we were both members. I would also like to remember Harry Fletcher, who was a former probation officer, trade unionist and lobbyist who latterly worked for Plaid Cymru in the House of Commons. Harry died about a year ago. He set up many of these all-party groups, and Dame Cheryl often chaired them and was always an active member. I have no doubt that these all-party groups were disproportionately influential because of the formidable, if unlikely, combination of Dame Cheryl’s leadership and Harry Fletcher’s campaigning support.

This Bill has one substantive clause. Clause 1 would amend Section 16A of the Prison Act 1952 so that it would use the generic definition of “psychoactive substance” provided in the Psychoactive Substances Act 2016. This would allow for tests to be carried out for psychoactive substances covered by this definition without the need to repeatedly amend the Prison Rules and YOI Rules for each individual, newly developed substance. The clause would provide for tests to be carried out for prescription-only and pharmacy medicines. It also makes provision for prevalence testing to allow for anonymised testing for the prevalence in prisons of controlled drugs, medicinal products, psychoactive substances and specified substances.

Unfortunately, it has proven far too easy for the producers and suppliers of drugs and psychoactive substances to make minimal changes to the composition of those substances and, therefore, to stay outside the provisions of existing legislation. This has to change and, on this basis, we support the Bill.

I have just finished a book by Chris Atkins about his time as a prisoner in Wandsworth Prison, which is local to where I live in south-west London. It is a well-written and, at times, funny book. Unfortunately, all his observations about the destructive ubiquity of drugs in prison only confirm that drugs have taken hold in the day-to-day operation of many prisons. Prisoners and staff are constantly affected by random acts of violence and exposure to drug-filled atmospheres.

In prison, as outside, many people take drugs to escape the world in which they live. They see drugs as a source of freedom, distraction and numbness. Unfortunately, these fleeting experiences make the problems of a chaotic life so much worse. Drug misuse, like alcoholism, can be seen as a medical problem and healing it requires well-funded, long-term medical and social intervention. Analysis by the Ministry of Justice suggests that being in treatment cuts reoffending by 44% and that the number of repeat offences committed is cut by up to 33%. From this, I believe that we know that substance abuse treatment works to reduce reoffending. It is likely that, if treatment were better funded, larger reductions would result.

Over the last 10 years, local government grants and public health funding have both been cut. Responsibility for drug treatment has been transferred to local authorities and the ring-fenced budget has been removed and reduced. Many of those who are in our prisons today might not be there if they had got help earlier, and if society and the state had had the resources to step in and stop that downward spiral before it started.

Substance misuse in prisons is rife. It fuels violence and health problems, and remains a barrier to rehabilitation. The physical and mental impact on prison staff, including those who provide healthcare and education, can be truly awful.

In the debates in the other place, the Minister Lucy Frazer spoke about a pilot drug recovery programme at HMP Holme House, which seeks to help prisoners improve their chances of recovery. She said that it had been in operation for a short period and that an evaluation of the pilot is due shortly. I ask the Minister whether that is now available. She went on to talk about drug-free wings and units in the existing prison estate, and I also ask the Minister what is being done to roll out this drug-free wing or unit approach.

I conclude by echoing the questions of the noble Lord, Lord German. He asked three very apposite questions and his points were backed up by the noble Baroness, Lady Ritchie, and the noble Lord, Lord Thomas of Gresford. His basic point was that there is likely to be an additional prevalence of addicted prisoners through the greater and more accurate testing regime. What will be done to provide and fund a way out of the terrible hole that our Prison Service is in? I look forward to the Minister’s reply.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice 12:04 pm, 16th April 2021

My Lords, I am grateful to all noble Lords who have contributed to this short but important debate on this very important Bill, which the Government support fully and unequivocally. I say at the outset that, when one is talking about prisons, there is a whole raft of matters that one can talk about. There will be certain matters raised today that may be more appropriately debated, at greater length, in other Bills that will come before your Lordships’ House.

I start by thanking my noble friend Lady Pidding for introducing this Bill, and all noble Lords for their contributions. It has been a personal pleasure to work with my noble friend on this. But I must echo the tributes made to my right honourable friend the former Member for Chesham and Amersham, Dame Cheryl Gillan, who was a warm and kind-hearted colleague and a tireless advocate for both her constituents and numerous important causes throughout her career. I also note the work that she did for Wales, in particular.

In 2009, she successfully brought the Autism Act into law, following the introduction of another Private Member’s Bill, which boosted provisions for adults with autistic spectrum conditions. Therefore, as my noble friend Lord Bourne of Aberystwyth noted, it is a fitting tribute and a demonstration of her consistent contributions to society and Parliament that we are debating this important Private Member’s Bill this morning.

It is apparent that Members across the House recognise the benefits of this Bill and, as others have, I pay tribute to Richard Holden in another place for championing its cause and bringing it forward. I hope that it reaches the statute book before the end of the Session. The Government have taken a keen interest in the legislation; it has therefore been reviewed by parliamentary counsel to ensure that it is legally sound. The Explanatory Notes in support of the Bill, to which I will come back, have been prepared by the Ministry of Justice with the permission of my noble friend Lady Pidding.

I fully endorse the point made by my noble friend that, to use her phrase, the Bill is “simple and straightforward”. It will future-proof drug-testing frameworks in prisons and young offender institutions by adopting broader definitions of psychoactive drugs, prescription-only medicines and pharmacy medicines. It will enable us to have a robust and responsive drug-testing framework that can respond very quickly to new drugs emerging on the market, as criminals tweak the chemical composition of existing psychoactive drugs to evade detection.

One has only to compare the speech of the noble and learned Lord, Lord Morris of Aberavon, who explained the position some years ago, when drugs were virtually unknown in prison, with the evidence provided by the right reverend Prelate the Bishop of Gloucester, who explained the ingenious ways in which criminals now get drugs into prisons. If I may break into Latin in the court of Parliament, because I am not allowed to any more in the courts of justice—tempora mutantur, nos et mutamur in illis. Your Lordships will need no translation.

The Bill also puts prevalence testing on a firm statutory footing. As my noble friend Lady Pidding explained, prevalence testing equips the Prison Service with better information to identify new and emerging drug trends, so that it can quickly react to changes in drug use. So this is a distinct Bill with a distinct purpose.

Drug misuse in prison is not only harmful but disruptive, both to the prison and its staff. It prevents hard-working staff in prisons delivering safe, meaningful and rehabilitative regimes. As my noble friend Lord Cormack reminded us, it is almost impossible to have proper rehabilitation if drugs are flowing through the prison. For too long, our interventions have been restricted by limitations in our drug-testing capabilities. That is why the Government support the measures in the Bill to tackle drugs in prisons and young offender institutions.

I was going to explain to your Lordships’ House some of the other work that the Government are doing in prisons but, given that I have limited time and have been asked a number of questions, I hope your Lordships will permit me to respond to those, as so far as I am able to, standing on my feet today.

First, the noble Lord, Lord German, asked three questions. The first was about publishing the findings, a point echoed by the noble Baroness, Lady Ritchie of Downpatrick. The position there is that Her Majesty’s Prison Service currently publishes data annually, as part of the annual digest, and data on psychoactive substances, prescription only and pharmacy substances, as a result of this Bill, will be included in those future annual publications.

The noble Lord’s second question was about funding, which a number of noble Lords asked about. The position there is that although the Bill provides power to test for a wider range of substances than is currently covered in the testing framework, the legislation will not significantly affect the practice or, we think, the volume of mandatory drug testing in England and Wales. There may well be additional lab costs, but that will be covered by existing budgets, so we anticipate that any financial impact will be modest. Depending on how the Bill’s powers are ultimately used and what the results are, they may give rise to a larger number of positive test results and, if that happens, there could be increased costs for providing therapeutic support, such as substance misuse treatment or increased adjudication costs. Again, we do not anticipate that those will be significant, but we will obviously keep that under review.

The noble Lord’s third question was about research. Data captured from the changes in the Bill will contribute to the wider picture available to the Prison Service and, in particular, to the drugs strategy and delivery unit. Analysis of this data will enable us to more accurately model future substance treatment interventions, as well as the implementation of suitable security countermeasures.

The noble Baroness, Lady Watkins of Tavistock, asked about the cost point, which I hope I have answered. She also asked about a review. I can assure her that this issue is kept under constant scrutiny by the department, and in particular by the Minister in the other place, whose policy area this is. My noble friend Lady Sater asked about rehabilitation and funding in that context. In January this year, we announced £80 million investment in drug treatment in England for the coming financial year, 2021-22. This will obviously increase the number of available drug treatment services in England for prison users with substance misuse issues.

The noble Lord, Lord Ramsbotham—as others have said, his experience in this area is, unparalleled—spoke about delivery. With respect, he is absolutely right. Of course, testing must be done on a proper basis, and I will say a little more about that when I respond to the point put to me by the noble Lord, Lord Thomas of Gresford. In fact, I turn to that now.

The first issue I should respond to is a rather legal one, so I will be brief, given the time. The noble Lord mentioned Article 8 of the ECHR. The Explanatory Notes, to which I draw the House’s attention, in paragraphs 34 to 42, provide that, although the Minister—in other words, me—does not have to give a certificate for the Bill, because it is a Private Member’s Bill, the Ministry of Justice has looked at the issue and we are satisfied that the Bill is compliant. Those paragraphs set out why we think the Bill is compliant with Article 8. I emphasise that prevalence testing is done only on samples already provided for mandatory drug testing: there is no further Article 8 interference and there is no power in the Bill to take intimate samples such as blood. I heard what the noble Lord said about the Act, if it becomes an Act, being challenged; we will cross that bridge when we come to it, but we have considered the issue.

On random and targeted testing, the position is that prisoners can be required to undertake monthly random mandatory drug tests or suspicion-based drug tests, or they can volunteer for compact-based drug tests. Prisons across England and Wales must carry out random mandatory drug testing on at least 5% to 10%, but no more than 15%, of the resident population each month. Where suspicion-based drug testing is employed, staff are required to undertake unconscious bias training to help prevent prisoners and young offenders with protected characteristics being dispro-portionately affected by the testing regime. I hope that that deals with the random and targeted point, as well as the anonymous point that the noble Lord put to me. As for the purpose, I think I have explained that in what I have already said.

I note the time, but I want to reply briefly to the point of the noble Lord, Lord Ponsonby of Shulbrede, about Holme House. That is a £9 million project which provides an innovative, whole-system approach to tackling substance misuse in prisons. It is subject to four evaluation elements. There is a process evaluation which will report by the end of spring this year, and an impact and economic evaluation which will report in 2023. If I am able to add any more to that, perhaps the noble Lord will permit me to write to him.

I am very conscious of the time, and also conscious that I have not replied to everybody who has contributed, but I hope I have dealt with the main points put to me and very much hope that this House will endorse and support the Bill, which has been so ably brought to us by my noble friend Lady Pidding.

Photo of Baroness Pidding Baroness Pidding Conservative 12:16 pm, 16th April 2021

My Lords, I start by thanking noble Lords on all sides of the House, and my noble and learned friend the Minister, for their warm comments about Dame Cheryl. I am touched by them and I know that her family will be too.

I thank all noble Lords who have taken part in this debate, and I appreciate the generous support for these important measures and the very thoughtful contributions. The Bill will make our prisons and young offender institutions safer, more secure and, ultimately, better environments for rehabilitation—aims that all local Lords who have spoken today share. Once again, I take this opportunity to reiterate the limited time we have remaining in this parliamentary Session. There is a real risk that the Bill could fall and we would miss the opportunity to pass these measures into law. From the valuable contributions today, it is clear that all noble Lords recognise the benefits of the Bill and the importance of the measures contained within it. However, should there be any unanswered concerns, I would welcome early engagement from colleagues across the House to allow me—I hope, with the support of the Minister—to address any concerns and resolve them without the need for amendments to the legislation as drafted.

Finally, I appreciate the Minister’s expertise and very supportive remarks and I thank the clerks and the officials at the Ministry of Justice for the guidance and support they gave me in preparing the Bill. I ask your Lordships to give the Bill a Second Reading. I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

We will now move to the next business. We will wait a few minutes for noble Lords to leave the Chamber and for those who will speak in the next debate to come in.