Letter to the Chairman of the Committee
from James Brokenshire MP, Parliamentary Under Secretary of State
for Crime Prevention, Home Office
I write further to the Home Secretary's letter
in July in which she agreed to write with further details of the
temporary banning power once she had obtained cabinet committee
agreement. This has now been received and I write on her behalf
to give you advance notice of our plans. My department intends
to place details in the public domain tomorrow (Friday 20 August)
and I ask respectfully that you treat this letter as embargoed
until that 0001 on 20 August.
The Committee will be aware that the Government set
out a commitment in the Coalition Agreement to "... introduce
a system of temporary bans on new `legal highs' while health issues
are considered by independent experts".
"Legal highs" or more accurately, new psychoactive
substances, are a relatively new phenomenon having risen to prominence
over the life of the last Parliament. They present particular
challenges, no more so than for our drug legislation to stay responsive
to new emerging drugs, the manufacturers and suppliers of which
look to subvert our drug laws and sell potentially harmful drugs
advertising them on the internet as "legal" and "safe".
Under the current arrangements for bringing
a drug under control of the Misuse of Drugs Act 1971 (the 1971
Act), the Government waits for the Advisory Council on the Misuse
of Drugs (ACMD) full advice on a drugs harms. The ACMD will conduct
a thorough review of all the available evidence, often taking
between three and six months. In addition, the current method
of parliamentary controlPrivy Council order following the
affirmative resolution procedurecan take at least two months
Our proposals for the new temporary banning
power will enable us to legislate fast: be informed by expert
advice but giving our experts the time to make a full assessment
of harm; be subject to parliamentary scrutiny; target supply and
not unnecessarily criminalising young people, particularly when
the true nature of the substance is in question.
The Government intends to amend the UK wide
Misuse of Drugs Act 1971 to introduce a separate class for those
drugs subject to temporary classification; subject orders placing
a drug under temporary control to a 12 month time period (or earlier
revocation, if for example, the drugs becomes subject to permanent
control in that time); apply the "trafficking" offences
only to drugs subject to temporary classification including possession
with intent to supply, offer to supply, supply, importation, exportation
and production; apply Class B current maximum penalties (14 years
and/or an unlimited fine on indictment and 6 months and/or £5,000
fine on summary conviction); and subject an order for temporary
classification to the negative resolution procedure, retaining
the affirmative resolution with Privy Council order for permanent
There are two features of the Government's plans
that I wish to highlight to the Committee. First, the possession
offence ordinarily prescribed to illegal drugs under the 1971
Act will not apply. Whilst a possession offence would send the
strongest message, our focus is to target importers and suppliers
to curb availability, not criminalise user's especially young
people while the full nature of the substance is mostly uncertain.
However, we will ensure that law enforcement have the power to
seize and retain the drug under temporary classification.
Second, as with drugs brought under permanent
control, the role of scientific advice is both integral and necessary
to ensure that any temporary ban is invoked on a necessary and
proportionate basis. It is proposed that the ACMD discharge this
role in line with their current statutory position providing expert
independent advice, to include a drug's likely psychoactive properties,
an indication of likely harmfulness and the legitimate use (for
which we would have to consider the impact of control, as we do
for drugs subject to permanent control). We will be working closely
with the ACMD to develop a protocol under which we would work
under the temporary banning power.
A clear and consistent narrative around the
temporary class will be needed to support the proposed new power
to ensure that it is not less effective than the current system
of control and users do not continue to use the drug subject to
temporary classification with impunity. We intend to work with
other interested government departments, particularly the Departments
of Health and for Education.
These measures sit alongside the development
of our new drug strategy to be published in December 2010. The
Committee will wish to be aware that a consultation paper which
sets out the key objectives and themes of the Government's vision
for drugs policy will also be published tomorrow. It will provide
an early engagement opportunity for a wide range of partners,
from charities to enforcement partners, drug workers and third
sector organisations as well as members of the public.
The Committee will also wish to be aware that
we are considering how best we can facilitate the ACMD's working
practices and its ability to give advice to tight timescales.
We are consulting the ACMD and wider science community.
The temporary banning power will help us tackle
the threat that these new "legal highs" pose to public
health, by responding swiftly on a precautionary basis enabling
our legislative approach to stop a drug like mephedrone gaining
a foothold in the UK. It is the Government's intention to introduce
first session legislation to achieve this.
19 August 2010