Psychoactive Substances Bill [HL] — House of Lords, 2015-06-30
Topic: Law and Crime
Alan Thomas Howarth (Labour, Centre-left): My Lords, we should be grateful to the noble Lord, Lord Norton, and to the noble Baroness for drawing our attention to these points. The Delegated Powers Committee and the Constitution Committee of your Lordships’ House had first done so, and it is unsatisfactory that there is so little clarity about the power to vary. We ought always to aim—certainly in this context—for as much legal certainty as it is possible to create I am glad that the noble Baroness, Lady Hamwee, has tabled amendments in this group that would amend Clause 10. This clause, which provides powers for the Secretary of State to create exceptions to offences, seems to be quite extraordinarily open-ended. I am rather surprised that the Constitution Committee did not draw attention to that as well. It leaves the Secretary of State free to retire from the field—to alter the specification of offences in all kinds of ways, subject only to the need to consult and the need for affirmative regulations. I submit that that is not a satisfactory way for the Government to legislate. Clause 10, if not Clause 3, does seem to create Henry VIII powers There is a broader constitutional point, which I think my noble friend Lady Bakewell made at Second Reading, when she noted that our normal constitutional practice—our normal tradition in this country—is to leave citizens free to do things unless they are specifically forbidden. The tenor of the Bill is to make everything forbidden, unless it is accepted in the field of the use of psychoactive substances. The House should be careful in permitting that kind of exception to constitutional tradition and practice. The policy had better work; it needs to be justified in its practice, because it is a somewhat objectionable principle The noble Baroness, Lady Hamwee, has tabled an amendment to require the Secretary of State to consult the Advisory Council on the Misuse of Drugs to report before exercising these different powers. It would be helpful if the Minister would clear up for us what consultation Ministers and their officials had with the Advisory Council on the Misuse of Drugs in the preparation of this report. It is, after all, the statutory duty of the ACMD to keep under review the situation in the United Kingdom in respect of drugs. However, we have been led to understand, possibly erroneously, that the first time that the Home Secretary sought the advice of the ACMD in drawing up this legislation was on 26 May, when she sent a letter asking for its advice on how to achieve better forensic services and to establish a comprehensive scientific approach to psychoactivity for evidential purposes. That was only two days before the Bill was laid before Parliament. It would appear, as the noble Baroness suggested, that the ACMD has been sidelined in the preliminaries to the legislative process It is by no means the first time that the advice of the ACMD has been rejected by Ministers of various Governments. Its recommendations in respect of the classification of magic mushrooms, cannabis, MDMA, khat and now of nitrous oxide have all been rejected by the Government. It was not always the case that the recommendations of the ACMD were so routinely ignored. Back in the 1980s, when we faced the crisis of mounting levels of heroin addiction and the spread of HIV and of AIDS, the ACMD’s advice was taken, to the great benefit of improved policy. When the UK Drug Policy Commission chaired by Dame Ruth Runciman reported in 2000, and again when it published An Analysis of UK Drug Policy in 2007, it warned of the lack of research underpinning policy development, and that policymakers, "operate partially blind when choosing effective measures" It would appear that that may still be the case in 2015. The recommendations of the Runciman commission were dismissed, as were the recommendations of the Global Commission on Drug Policy dismissed by the Home Office in 2011, as were, in 2012, the recommendations of the Home Affairs Select Committee that a royal commission should be established. However, policy should be made not on a basis of political expediency, but in response to evidence. It should be made not on a basis of anxiety about what the tabloids might say but on the basis of the advice of independent experts Professor Nutt, the chairman of the ACMD, was sacked essentially for telling the truth about the relative dangers of alcohol and tobacco vis-à-vis cannabis and ecstasy. Mephedrone was classified before the Government had received the advice of the ACMD, but following a huge campaign by the Sun newspaper and an endless series of "meow meow" stories, most of which turned out to be false when the facts were properly established. There were many resignations from the ACMD at that period. People in the front line of enforcement—the noble Lord, Lord Paddick, may be able to tell us something about this, if he chooses to do so—found that the vacillations and vicissitudes of policy made life very difficult for police officers in the front line of enforcement in Brixton or elsewhere Therefore, what advice does the Minister follow? What does he see as the role of expert advisers, and to what extent has the ACMD been consulted in this context? Certainly, I hope that he will answer the questions articulated by the noble Lord, Lord Norton.