On the 14th July 2015 the Bishop of Bristol, the Rt Revd Mike Hill, spoke in support of an amendment he had co-sponsored with Lord Kirkwood to the Government’s Psychoactive Substances Bill, to strengthen as an offence the supply or offering to supply psychoactive substances on or near children’s homes and schools. The amendment was not out to a vote following assurances received from the Minister, Lord Bates.
The Lord Bishop of Bristol: My Lords, I was glad to add my name to the amendments in the name of the noble Lord, Lord Kirkwood, and I thank him for his clear exposition of why they are important. They are intended to strengthen the legislation although, as a result of the conversations with the Minister yesterday, we recognise that there might be some practical difficulties around them. Nevertheless, I hope the Minister will listen carefully and continue the exemplary way in which he has been prepared to engage with colleagues on this issue. I thank him for that.
These amendments are important for a number of reasons. First, those of us who have any kind of jurisdiction around our cities at this time know full well that there are ruthless men and women who will go to any ends to exploit whoever is exploitable—and, of course, children and young adults are a very exploitable group.
Secondly, the Children’s Society—I am grateful for its briefing around this subject—recently polled some 16 and 17 year-olds who had felt the pressure to take drugs and to misuse alcohol. Those who have been able to withstand that pressure made it very clear that the reason they were able to do so was because of the positive impact of their families on the decisions that they might or might not have made. The flip side of that is that children who have no family in their immediate vicinity are made even more vulnerable by the fact that they may not be living with their family or may have lost contact with them altogether. This is a strong reason for the Minister to give careful consideration to these amendments. As I say, they are meant to strengthen this legislation.
Drugs in general but alcohol and psychoactive substances in particular are supplied not as an end in themselves but as a tool to groom children. Last year in my city 13 men were imprisoned for giving alcohol and drugs to young women and girls, some as young as 13. In return for supplying them with drugs, the girls were expected to have sex randomly with older men. I am sure that all noble Lords are repelled by such things.
I am told that in the north-east a group of young men in so-called supported accommodation was targeted by older men looking to exploit them through criminal activity. The giving of psychoactive substances for free gave these ruthless men the opportunity to say to the young men, “You are now indebted to us and you will pay back your debt with interest”. The result was that they were deployed in aggressive begging and criminal activity. In a way, “supported accommodation” is a bit of a misnomer. These premises are not regulated in the same way as children’s homes. Some 16 and 17 year-olds can be in the company of people who are being rehabilitated from drug addiction or have come out of prison.
I am concerned that careful consideration is given by the Minister and your Lordships’ House to these important amendments. I realise that there is an issue of whether these amendments should be put in legislation or whether they can be dealt with by sentencing guidelines. I believe that there is a problem and would not want to quell any discussion. If this may be a way forward, a note of caution needs to be sounded. There is some anxiety that these older children, to whom the noble Lord, Lord Kirkwood, drew attention, might be overlooked. There is some feeling that, by the age of 16 or 17, a young person might be able to make up their own mind. Therefore, I am not quite sure whether covering this in the sentencing guidelines will give the protection that the noble Lord and I would like.
Let me end where I began, by expressing the firm hope that the Minister, who has been excellent in his engagement over these amendments, might be willing to continue to further discuss these matters. I should be grateful to hear what he has to say this evening.
Lord Bates: …[extract] I want to put on the record that the noble Lords, Lord Rosser and Lord Kirkwood, are raising matters of enormous importance. That is why when they were raised in Committee, we undertook to reflect deeply on what was said. We organised a meeting with the Children’s Society, and there have been conversations since.
It would be helpful for those who picked up on the point made by my noble and learned friend Lord Mackay to be aware of the context in which we have to consider these amendments, because it is not immediately straightforward—or at least, it was not to me. The Misuse of Drugs Act 1971 contains no aggravating factors —the point that my noble and learned friend referred to. They were introduced in the Drugs Act 2005, which amended the 1971 Act and introduced an aggravated offence of supplying a controlled drug in the vicinity of school premises. The Coroners and Justice Act 2009, which was introduced under the previous Labour Government, stipulated that the courts must have regard to the sentencing guidelines. So, we moved from having nothing to having several statutory aggravating factors, and then to the commitment that the courts must not only pay due regard to but follow the sentencing guidelines. In February 2012, the Sentencing Council issued drugs offences definitive guidelines, which are the ones the courts are currently working from.
The guidelines describe the statutory aggravating factor:
“Offender 18 or over supplies or offers to supply a drug on, or in the vicinity of, school premises either when the school is in use as such or at a time between one hour before and one hour after they are to be used”.
Because that was put in the 2005 Act, which amended the 1971 Act, we, in preparing the Psychoactive Substances Bill, decided to follow through with that statutory provision. That is how we have arrived at this point. It was not a case of wanting to include some things and not others; we were simply following through in a consistent way the existing statutory amendments to the Act.
However, the sentencing guidelines provide other aggravating factors, for example:
“Targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18”.
That is very clear guidance. As a result of the 2009 Act, the courts have to follow that guidance.
Some particularly powerful examples have been given in the debate, for example by the right reverend Prelate the Bishop of Bristol. Others were drawn from the Children’s Society, a meeting with which the noble Lord, Lord Kirkwood, and the right reverend Prelate the Bishop of Portsmouth attended yesterday. We listened to examples whereby new psychoactive substances are used as a tool to groom young vulnerable children and to lure them into a dependency on criminal gangs. It was reminiscent of the debate we had during consideration of the then Modern Slavery Bill, when we heard about the use of such tools to elicit dependency. However, it is clear that the sentencing guidelines refer to premises in which the intention was to locate vulnerable individuals.
Essentially, the debate on these amendments distils down to whether we deal with everything in statute—in other words, we turn the clock back to before the Sentencing Council, before the guidelines, before the coroners’ board and before the 2005 Act—or we take robust action to ensure that the guidelines are updated and reformed to reflect the concerns that have been drawn to our attention, not least by Her Majesty’s Inspectorate of Prisons, as we heard this morning, by the Prisons and Probation Ombudsman, by the Children’s Society and others. Of course, the report of the noble Lord, Lord Harris, on deaths in custody, was published a couple of weeks ago, and I am sure the Justice Secretary is considering it.
All these things have to be taken into account, and I undertook to explore this issue with my right honourable friend Mike Penning, who leads on this policy area and is a Minister not only in the Home Office but in the Ministry of Justice. In the days when the Home Office used to deal with everything to do with prisons, some of these decisions were slightly easier to make; however, in Mike Penning we have someone who is a Minister in both departments.
We had a long discussion this morning about this. The view was that we wanted to listen carefully to what has been said. It was drawn to our attention immediately, particularly with the potential targeting of children’s homes and accommodation, and the examples that we have heard from the Children’s Society and the church, that action needed to be taken. My right honourable friend the Minister for Policing, Crime and Criminal Justice will therefore be writing to the chair of the council, the Right Honourable Lord Justice Treacy, to draw this debate to his attention and to invite the council to take your Lordships’ views into account when considering what changes to the guidelines on drugs may be required as a consequence of the enactment of this legislation. That is going to happen.
I think and I hope that that might go some way to addressing the amendment of the noble Lord, Lord Kirkwood, in particular, and with the promise that we want to continue the dialogue with the Children’s Society, which I thought was immensely helpful, as this legislation goes through…
..There are some provisions in the current statutory guidance; for example, if the offence occurs in the vicinity of a school one hour before or one hour after—so the vicinity of a school is defined. My first instinct—this is not our official position because we are discussing this—is that the terminology should be something around targeting any premises intended to locate vulnerable individuals or the supply to such individuals, so perhaps a broader range might be helpful in this regard. That will certainly be contained in that provision. We are going to write to the Sentencing Council. We will wait to see whether the Sentencing Council responds as quickly as the ACMD to letters from the Home Office, but we may have some responses in the latter stages of the Bill as to what its thinking is.
Whether we use the sentencing guidelines or statute to tackle these issues, particularly prisons—and I am very mindful of the examples that were given and, of course, the remarks of my noble friend Lord Blencathra about anomalies—in the current statutory sentencing guidelines aggravating factors include an offence committed while on bail or licence, but there does not seem to be reference to an offence committed while being detained in prison. Of course, that is because the argument is that these are covered by prison regulations but there is no doubt, just as the Children’s Society said, that over the past few years new psychoactive substances have gone from being an issue that was barely ever mentioned to now being its top concern. To have that example given this morning on the “Today” programme, with someone saying that this comes ahead of many other pressures—top of the list of concerns—shows that it is clearly growing in importance. Of course, the intervention of the ombudsman adds to that…
…I should also make the point that going down the route of the sentencing guidelines we have laid out here is probably more likely, because it goes with the grain of the current process of advising on sentences and for the courts to have regard to that. We should wait to see the Sentencing Council’s response to my right honourable friend Mike Penning’s letter, which has either gone today or will go tomorrow, and see if there is more that can be done at a later stage. I believe that we are travelling in the same direction here. We recognise that this is a growing problem. We want to deal with it and it is a question of what is the most effective way to ensure that yet again we do not create unintentional loopholes, which are exploited by the people who are the very target of this legislation. In that spirit, perhaps the noble Lord might consider withdrawing his amendment.