The Approved Premises (Substance Testing) Bill is a private member’s bill that would create a statutory framework for drugs testing in approved premises, including testing for psychoactive substances and the abuse of prescription and pharmacy medicines. The bill received cross-party support in the House of Commons.
The Approved Premises (Substance Testing) Bill is a private member’s bill sponsored in the House of Lords by Baroness Sater (Conservative). It was introduced in the House of Commons by Rob Butler (Conservative MP for Aylesbury) and completed its Commons stages on 21 January 2022. The Government supports the bill. The Ministry of Justice has produced explanatory notes, a delegated powers memorandum and an equalities statement to accompany the bill.
The bill had its first reading in the House of Lords on 24 January 2022. Its second reading is scheduled to take place on 25 March 2022.
What are ‘approved premises’?
‘Approved premises’ are premises approved by the secretary of state under section 13 of the Offender Management Act 2007 to provide accommodation for people on bail or for the supervision or rehabilitation of offenders. The Government has stated that they exist to “ensure that bailees and offenders with the highest risk and most complex needs receive additional residential supervision in the community and additional rehabilitative support following release from custody”. There are 101 approved premises in England and Wales, providing approximately 2,300 places. The average length of stay for an offender is 12 weeks, although offenders convicted of terrorist offences can live there for up to 12 months.
Drug testing in approved premises
Some drugs testing currently takes place in approved premises. Residents are currently drug tested if requested by staff. This is provided for in the house rules of the approved premises, which residents are required to accept as a condition of their residence. The house rules are made in accordance with regulations made under the 2007 act.
At present, Her Majesty’s Prison and Probation Service (HMPPS) can test for only four types of drugs—opiates, cannabis, cocaine and amphetamines—in approved premises and for offenders under licence or post-sentence supervision in the community. Such testing would not detect other substances known to be misused by offenders, such as psychoactive substances, methylenedioxymethamphetamine (MDMA), benzodiazepines and prescription medications.
The Prisons and Probation Ombudsman has been calling for changes to drugs testing in approved premises. In a ‘lessons learned’ review published in 2017, the acting ombudsman recommended the National Probation Service should review its drugs testing policy within approved premises and should consider introducing testing for psychoactive substances. In her most recent annual report, published in September 2021, the current ombudsman, Sue McAllister, repeated the call for psychoactive substance testing to be made available in approved premises as soon as possible. The report noted the ombudsman’s continued concerns about the number of drug-related deaths among approved premises residents. It identified substance misuse as one of the key issues that approved premises staff have to manage. The report pointed to a high risk of overdose in the first month after someone is released from prison. Contributing factors may include a reduced tolerance to opiates after a period of abstinence, and/or a lack of understanding of the strength of the illicit substances that may be available in the community.
The drug testing regime in prisons was changed recently by the Prisons (Substance Testing) Act 2021, which was also introduced as a private member’s bill. This act amended the Prison Act 1952 to add pharmacy medicines, prescription-only medicines and psychoactive substances to the list of substances for which prisoners can be tested and to enable prisons to carry out prevalence testing. The bill would make similar changes for approved premises.
What would the bill do?
Clause 1 would add a new section 13A to the Offender Management Act 2007 dealing with substance testing of residents in approved premises. It would allow the manager of an approved premises to authorise staff to require a resident to provide a urine sample for the purpose of ascertaining whether the resident had a controlled drug, prescription-only medicine or psychoactive substance in their body. The resident could also be required to provide any other type of sample, but not an ‘intimate sample’, such as blood, semen or pubic hair.
New section 13A would also enable the secretary of state to use any residents’ samples to test, on an anonymised basis, for the prevalence of controlled drugs, medicinal products or psychoactive substances in approved premises.
Staff and managers of approved premises would be required to have regard to any guidance issued by the secretary of state.
Definitions for the terms used in new section 13A are set out in subsection (7).
Clause 2 provides that the bill would extend to England and Wales only, and would come into force on a day appointed by the secretary of state.
House of Commons stages
The bill had its second reading in the House of Commons on 29 October 2021. Rob Butler, the bill’s sponsor, said it would create a comprehensive framework for drug testing in approved premises, and bring them in line with the regime in prisons. He argued that one reason for needing more formalised and widespread testing was the changing pattern of drug misuse both in custody and in the community, including a greater prevalence of psychoactive substances. He described these as “particularly unpleasant”, especially because of their unpredictable impact on different individuals, which could include convulsions, temporary loss of vision, and aggressive behaviour. In addition to this, he said that the abuse of pharmacy medicines and prescription-only medications was also problematic and “can at times even prove lethal”.
Mr Butler also explained that the use of urine samples would be more effective. He said that relatively few drugs could be detected reliably in oral fluid, which is what is currently used. Where they can be detected, it is sometimes only for 12 to 24 hours, whereas he said that drugs such as heroin would be detectable in a urine sample for up to five days.
Mr Butler said that introducing prevalence testing on an anonymised basis would be “key to helping HMPPS understand the ever-changing drug landscape”, allowing staff to take appropriate action to tackle the threat of drugs in approved premises.
Looking at the impact on individuals, Mr Butler said that if a resident failed a drugs test, staff of the approved premises would direct them to an appropriate substance misuse organisation. He emphasised that the aim would be rehabilitation. However, he said that more punitive sanctions could follow for continued substance misuse behaviour. He argued the bill would have benefits for wider society, since “anything we can do to help people steer clear of drugs, including psychoactive substances and illicit medication, has the potential to cut crime”.
Alex Cunningham, Shadow Minister for Justice, said that Labour supported the principle of the bill as it would “give offender managers the powers they need to clamp down on illicit drugs in approved premises and, by doing so, to protect those in their care and prevent them reoffending”. He echoed Mr Butler’s concerns about the rise in use of psychoactive substances and the abuse of prescription drugs.
Kit Malthouse, the Minister for Crime and Policing, gave the Government’s support to the bill, describing it as “very important” legislation. He said having a comprehensive testing framework in place would “be vital in ensuring that approved premises are safe and drug free, and that the risk of serious harm is reduced for the individual, other residents and, most importantly, the wider public”. He argued that prevalence testing would help the Government better identify emerging trends and react quickly, and would help approved premises staff put the necessary care planning in place.
The House of Commons passed a money resolution on the bill on 29 November 2021, approving expenditure arising from the bill. The Government has estimated that the costs to carry out the enhanced testing regime in approved premises brought in by the bill would be around £1.2 million per year. This compares with approximately £300,000 spent on drug testing kits (including associated laboratory testing costs) in approved premises in 2019/20.
The bill was considered by a public bill committee on 15 December 2021. No amendments were tabled. Members of the public bill committee expressed support for the bill’s aims.
No amendments were tabled for report stage, so the bill proceeded to third reading on 21 January 2022. Mr Butler reiterated the arguments he had made at second reading in favour of the bill. He also provided some further detail on how it was intended that the new testing regime would work in practice. It was anticipated that during an average stay of 12 weeks, a resident would be tested twice. He said that HMPPS estimated that would mean a total of around 20,000 tests a year.
Ellie Reeves, Shadow Minister for Justice, repeated Labour’s support for the bill, while criticising the Government for not getting to grips with “the fundamental problems across our justice system”. Victoria Atkins, Minister of State at the Ministry of Justice, argued that the bill, coupled with the Government’s drugs strategy and prisons strategy, would “play an important role in helping us to tackle illegal drug use, cut crime and save lives”.
Amended to include the date of the second reading of the bill.