Prisons (Substance Testing) Bill

Nicole Winchester

The Prisons (Substance Testing) Bill (HL Bill 181 of session 2019–21) is a private member’s bill sponsored by Baroness Pidding (Conservative). Dame Cheryl Gillan (Conservative MP for Chesham and Amersham who died on 4 April 2021) sponsored the bill in the House of Commons. It completed its Commons stages on 12 March 2021. The House of Lords is due to debate the bill at second reading on 16 April 2021.

The Government supports the bill, with the Ministry of Justice producing its explanatory notes.

What is the background to the bill?

How widespread is the misuse of drugs in prisons?

HM Prisons and Probation, an executive agency sponsored by the Ministry of Justice, addressed the issue in its April 2019 Prison Drugs Strategy which said that “the misuse of drugs in prison is one of the biggest challenges facing our criminal justice system”. Arguing that the issue was widespread, particularly in male local and category C prisons, it said that the problem had become more challenging in recent years. It highlighted that between 2012/13 and 2017/18, the rate of positive random tests for ‘traditional drugs’ increased by 50%, from 7% to 10.6%. It claimed that the emergence of psychoactive substances had exacerbated the problem, with these substances often used alongside other drugs. The Psychoactive Substances Act 2016 defines a psychoactive substance as any substance that can produce a psychoactive effect in a person who consumes it and is not exempted. The strategy also noted that problems with the diversion and misuse of prescription medications remained.

More recently, Ministry of Justice statistics showed that in the year ending March 2020, 54,047 random mandatory drug tests were carried out in prisons in England and Wales. This figure has remained roughly stable since 2014. In March 2020, 10.4% of mandatory tests were positive for ‘traditional drugs’, such as cannabis, amphetamines and opiates, and 8.8% were positive for psychoactive substances.

What issues do misuse of drugs cause?

The Prison Drugs Strategy highlighted evidence which has shown that the prisons with the highest rates of positive tests are the least stable. Explaining the issues caused, it said:

The misuse of drugs contributes to a cycle of disruption and violence, leading to a reduced or unstable regime, which through unpredictability and lack of purpose can encourage prisoners to turn to drugs and alcohol. The debt resulting from the supply, distribution and use of drugs is also a significant cause of violence, intimidation and self-harm across the estate, endangering both staff and other prisoners.

The Black Review, an independent review of drugs the Government commissioned in 2019, also reported on 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 addition, in their 2019–20 annual report, HM Chief Inspector of Prisons for England and Wales argued that the safety and decency in prisons had for many years been “undermined by the prevalence of illicit drugs and the impact they have in generating debts, bullying and violence”. A variety of HM Inspectorate reports on individual prisons have also reported on the problems drugs cause.

Considering the issues, in its Prisons Drugs Strategy HM Prisons and Probation said that prisons would not be able to improve safety, prevent reoffending or tackle serious and organised crime without reducing the misuse of drugs. However, it said that due to the complexity of the issue, there was no simple answer. Rather, a coordinated effort was required to:

limit the supply of drugs inside and outside of prisons;
encourage people away from drug misuse towards positive and productive activities; and
support those requiring treatment.

What is the Government’s current policy on testing?

In the explanatory notes to the Prisons (Substance Testing) Bill, the Government said that the power to undertake mandatory drug testing was an “important tool” for prisons and youth offender institutions (YOIs). It argued that testing allowed prison governors and staff to understand the extent and nature of drug abuse in their establishment and target their response appropriately.

However, the Government has highlighted limitations with the current testing regime in relation to psychoactive substances. Its 2016 white paper, Prison Safety and Reform, noted the growth in the misuse of psychoactive substances and the challenges posed by the regular changes to the chemical make-up of such substances. Alongside other measures, it committed to introduce legislation to:

Simplify which psychoactive substances are covered by the existing testing process, allowing new tests to be introduced more swiftly as soon as we become aware of new psychoactive substances on the market.

The 2019 Prison Drugs Strategy also focused on testing as part of its ‘restricting supply’ strand. Explaining the purpose of testing, it said:

Finding drugs and identifying those with drug misuse problems is further supported by an effective drug testing regime. Prisoners who test positive can be subject to sanctions, as well as being supported to access treatment, and so testing is key to encourage prisoners to remain drug free and help them to maintain this. The testing process also helps to monitor trends in drug use in prison, inform activities that reduce the prevalence of drugs in prisons, and contribute to intelligence about the supply and use of drugs. The results of testing contribute towards drug treatment policies and enable governors and healthcare providers to better understand the needs of their prisoners.

The Government further emphasised the importance of testing in response to a parliamentary written question on the issue of drug misuse in prisons in September 2020. Responding, Lucy Frazer, Minister of State at the Ministry of Justice, said that drug testing provides “robust evidence on the prevalence of drug misuse and can be used to support security measures, identify and signpost into drug treatment, monitor treatment compliance and act as an incentive to engage in treatment and recovery”.

In another parliamentary written question in March 2020, Ms Frazer outlined what steps the Government was taking in response to the supply of drugs in prisons:

We are taking decisive action to improve security to: stop illicit items being smuggled in by prisoners, staff and visitors; to strengthen staff resilience to corruption; and to target organised criminals who exploit prisons as a lucrative illicit market. This package of measures is being funded through the £100m investment to tackle crime behind bars, announced by the Prime Minister last summer.

Enhanced gate security is being deployed to the most challenging prisons in the estate. Cutting-edge x-ray body scanners will target prisoners internally smuggling illicit items into prisons. We recently announced the first 16 sites to receive this equipment.

Whilst the vast majority of our staff are honest and hardworking, we are also investing new resource to step up our counter corruption capability and strengthen (in scale and reach) intelligence-led operations and investigations with law enforcement partners against those that present the greatest threat of harm to prison security and the community.

We will also equip sites with new technology and staff to enhance staff and visitor searching at the gate. We have already announced the first 7 sites for this provision.

Lucy Frazer also highlighted the Government’s support for the Prisons (Substance Testing) Bill.

What is the current law on testing?

In England and Wales, the law currently allows for mandatory drugs testing in prisons. Section 16A of the Prison Act 1952 provides the statutory basis for this. It enables prison officers to require a prisoner to supply a urine sample to learn if they have any ‘drug’ in their body. Under section 16A(3), a ‘drug’ is defined as any drug that is a controlled substance for the purposes of the Misuse of Drugs Act 1971 or any ‘specified drug’, which means any substance or product listed in the schedules to:

New drugs can be added to these schedules by secondary legislation.

These rules also set out the arrangements for mandatory drug testing, including information that must be provided to prisoners by prison officers and arrangements to prevent the adulteration and falsification of samples. A Prison Service Order on mandatory drug testing sets out further guidance and instructions for staff.

Both the Prison Rules and the Youth Offender Institution (YOI) Rules state that it is a disciplinary offence (subject to certain defences) for a prisoner to test positive for a controlled drug or specified drug administered by themselves or another person.

What are the issues with the current law?

The explanatory notes for the Prisons (Substance Testing) Bill highlighted several gaps in the current law on drug testing in prison. These relate to psychoactive substances, prescription medicines and prevalence testing:

In recent years, the use of psychoactive substances has become more widespread in prisons. Such substances are often created with slight alterations to the chemical make-up of existing substances to evade detection on mandatory tests. This poses a challenge as when the chemical composition is changed, the Government must change the law to include that new substance. This has led to repeated amendments to the Prisons Rule and the YOI Rules, a time-consuming process.
Currently, the specified lists of substances that prisons can test for do not include all prescription and pharmacy medicines. However, some prisoners are known to misuse such medicines, making such substances part of the prison economy for drugs.
Presently there is no legislative basis for prevalence testing in prisons. Prevalence testing is an established process to help identify any new substances that are being found routinely in either mandatory or voluntary drug testing samples. It uses anonymised samples and cover a much wider range of drugs than are currently tested for under the Prison Act 1962.

What would the bill do?

The Prisons (Substance Testing) Bill would amend existing legislation to enable prisoners to be tested for a wider range of drugs. It would also set out a legislative basis for prevalence testing in prisons.

The bill has three clauses.

Clause 1 would amend section 16A of the Prison Act 1952 to:

Adopt the generic definition of a psychoactive substance from section 2 of the Psychoactive Substances Act 2016. This would allow tests to be carried out for psychoactive substances covered by the definition, without the need to add each individual substance to the Prison Rules 1999 and YOI Rules 2000 by secondary legislation.
Allow for prisons to test for prescription only and pharmacy medicines, as defined by the Human Medicines Regulations 2012.
Enable prisons to carry out prevalence testing. It would insert a new subsection into section 16A of the Prison Act 1952 to allow for anonymised testing to find out the prevalence of controlled drugs, medicinal products, psychoactive substances and specified substances in prisons.

Clause 2 would make a series on consequential amendments following the changes set out in clause 1.

Clause 3 would set out the bill’s territorial extent as England and Wales only. It would also specify that the bill would come into force on a date set by the secretary of state.

What happened in the House of Commons?

On 5 February 2020, Sir Charles Walker (Conservative MP for Broxbourne) introduced the Prisons (Substance Testing) Bill in the House of Commons on behalf of Dame Cheryl Gillan, the bill’s sponsor. The bill completed its remaining stages in the Commons on 12 March 2021. It received cross-party support throughout.

Second reading

The bill received its second reading in the House of Commons on 16 October 2020. Opening the debate on behalf of Ms Gillan, Richard Holden (Conservative MP for North West Durham) argued that the misuse of drugs had become one of the biggest challenges for prisons. In particular, he highlighted the misuse of psychoactive substances and prescription and pharmacy medicines as “growing and dangerous” problems in need of action.

Setting out the purpose of the bill, Mr Holden said that it looks to improve the capability of prisons to test for illicit substances and tackle the prevalence of drugs in prisons. He also argued that the bill:

Future-proofs drug testing programmes prisons and young offenders institutions, and it will allow the Prison Service and the Youth Custody Service to take the appropriate action to tackle the threat of drugs.

Speaking for the Government, Lucy Frazer, Minister of State at the Ministry of Justice, welcomed the bill. Confirming that it had the Government’s support, she said that the bill is “critical to ensuring that we can react quickly to stop the distribution of drugs in our prisons”.

Money resolution

The House of Commons approved a money resolution on 25 November 2020 authorising public expenditure necessitated by the bill. However, the explanatory notes to the bill have said that the legislation would not significantly affect the practice or volume of mandatory drug testing and that any additional lab costs would be covered by existing budgets. Therefore, it stated that any financial impact would be modest. However, it said that depending on how the powers in the bill are used, they could lead to a rise in positive test results. This could in turn mean increased costs for providing therapeutic support, such as substance misuse treatment and/or increase adjudication costs. The notes also highlighted that during the 2019/20 financial year, £4 million was spent on services related to drug testing.

Committee stage

A public bill committee examined the bill on 2 December 2020. MPs tabled several amendments. However, the committee only agreed to one consequential amendment tabled by Ms Gillan and Mr Holden.

Lyn Brown, Shadow Minister for Justice, tabled the other amendments, which she did not force to a vote. These amendments would have introduced two new clauses to the bill.

The first new clause would have required the Government to publish an assessment of the effects and value for money of the measures in the bill within a year of it coming into force. Commenting on this, Ms Frazer said that amendments to increase reporting were not necessary as “sufficient procedures are already in place to measure and record what work will be done”.

The second new clause would have required the Advisory Council on the Misuse of Drugs to publish a report to Parliament every six months on the types and quantities of substances getting into prisons and their effects. The report would also have to comment on the adequacy of the testing regime and include any recommendations the council might have as a result of its findings. Responding, Ms Frazer said that the council had advised the Government that it was not set up for the type of role proposed by the new clause.

Report stage and third reading

The bill’s report stage took place on 12 March 2021. Sir Christopher Chope (Conservative MP for Christchurch) tabled two amendments. New clause 1 would have made the secretary of state produce an assessment on the effectiveness and value for money of the act within two years of it coming into force. New clause 2 would have placed an expiry date on the bill of three years from the day it received royal assent. However, after a short debate Mr Chope withdrew the amendments.

Following report stage, third reading took place with all parties voicing their continued support for the bill. The bill also received its first reading in the House of Lords on the same day.