Misuse of Drugs Act 1971 (Temporary Class Drug) order 2012


The Committee consisted of the following Members:

Chair: Mr Dai Havard 

Banks, Gordon (Ochil and South Perthshire) (Lab) 

Dobson, Frank (Holborn and St Pancras) (Lab) 

Duddridge, James (Lord Commissioner of Her Majesty's Treasury)  

Green, Damian (Minister for Immigration)  

Hancock, Matthew (West Suffolk) (Con) 

Harrington, Richard (Watford) (Con) 

Hoey, Kate (Vauxhall) (Lab) 

Huppert, Dr Julian (Cambridge) (LD) 

Johnson, Diana (Kingston upon Hull North) (Lab) 

Kwarteng, Kwasi (Spelthorne) (Con) 

Mann, John (Bassetlaw) (Lab) 

Paisley, Ian (North Antrim) (DUP) 

Patel, Priti (Witham) (Con) 

Rutley, David (Macclesfield) (Con) 

Sarwar, Anas (Glasgow Central) (Lab) 

Stewart, Iain (Milton Keynes South) (Con) 

Wilson, Phil (Sedgefield) (Lab) 

Wright, Simon (Norwich South) (LD) 

Anne-Marie Griffiths, Committee Clerk

† attended the Committee

The following also attended ( Standing Order No. 118(2) ) :

Flynn, Paul (Newport West) (Lab) 

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First Delegated Legislation Committee 

Monday 21 May 2012  

[Mr Dai Havard in the Chair] 

Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2012

4.30 pm 

The Minister for Immigration (Damian Green):  I beg to move, 

That the Committee has considered the Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2012 (S.I. 2012, No. 980). 

Mr Havard, it is always a great pleasure to serve under your chairmanship. The order was made on 29 March and came into force on 5 April 2012. It specifies methoxetamine and its simple derivatives as drugs subject to temporary control under section 2A(1) of the Misuse of Drugs Act 1971. Subject to Parliament’s approval within 40 sitting days of its being made, the order may remain in force until the end of 4 April 2013. 

Our reasons for introducing the order are clear: methoxetamine is a new psychoactive substance, previously advertised as a legal and safer alternative to the class C drug ketamine. By late 2011, the Government, having monitored the situation, including through our drugs early warning systems, noted with concern evidence of the rising popularity and potential harms of the drug. In light of those concerns, they referred methoxetamine to the Advisory Council on the Misuse of Drugs for advice, under the new temporary control power. The power to make such an order, available to the Secretary of State since 15 November 2011, was introduced in the Police Reform and Social Responsibility Act 2011, pursuant to the coalition agreement. The working protocol agreed jointly between the Home Secretary and the ACMD sets out the details of mutual engagement under the power. 

The Home Secretary is satisfied, in consideration of the available evidence and the ACMD’s initial advice, that methoxetamine is a drug that is being misused, and that the misuse is having sufficiently harmful effects to warrant temporary control. Under the power, the ACMD was able to provide advice, so that a decision could be made in a matter of days—15 days, to be exact. We are grateful to the ACMD for the quality of its advice, and its appreciation of the quality of the data collated through our drugs early warning systems in a very short period of time. It is the first time that we have used this new process and our systems in practice. 

The ACMD has described methoxetamine as chemically similar to class C ketamine and class A phencyclidine, or PCP. It compares the effects of methoxetamine toxicity with those of acute ketamine use, which include hallucinations, catatonia and dissociative effects. It identifies additional cardiovascular effects, agitation, hypertension and cerebella features such as ataxia—unsteadiness on the feet—that are rarely seen with other controlled drugs and not seen with ketamine. The ACMD’s advice further points to evidence of the rising incidence in the

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UK of presentations at hospitals and inquiries from toxicology units, and to an increase in numbers of internet websites selling the drug in 2011. Having considered its advice, we accept the ACMD’s recommendation that methoxetamine be subject to temporary drug control measures as a public health and protection measure. 

The temporary class drug order applies across the UK. It enables enforcement action against traffickers under the main drug offence provisions of the 1971 Act and related legislation. It also sends out a clear message to the public, especially young people, that methoxetamine is a harmful drug. The order is only one part of the Government’s wider response to the need to tackle new psychoactive substances. Last week, on 17 May, we published a new cross-Government action plan as an annexe to our drug strategy. We will continue to monitor methoxetamine and to support the ACMD while it prepares full advice for the Government in relation to social harm and permanent control. I commend the order to the Committee. 

4.34 pm 

Diana Johnson (Kingston upon Hull North) (Lab):  It is a pleasure to serve under your chairmanship, Mr Havard. 

I thank the Minister for setting out the background to the order, which is subject to the affirmative procedure. If it is agreed to today, it will be in place for 12 months. I want to comment on whether we are using and sharing—particularly with our European neighbours—information on legal highs effectively. I would also like to talk about the consequences of delays, which we saw in the case of other substances. Education is referred to in the impact assessment; I will talk about that, as well as the Forensic Science Service. Finally, I will ask the Minister about the situation in Poland and Ireland. 

The Home Secretary promised that the temporary banning orders, which the Minister talked about, would 

“strike the right balance between swift action and expert advice”.—[Official Report, 13 December 2010; Vol. 520, c. 715.] 

That would allow swift action to be taken against emerging legal highs. Since the Government came to power, 90 new legal highs have emerged and been identified in Europe, and many more that were already present have started to gain further prominence. As the Minister said, however, methoxetamine is the first drug to be banned under a temporary order. What is happening to all those other legal highs out there that people have access to? 

The Europol director, Rob Wainwright, has said: 

“The selling of illicit drugs and new psychoactive substances is yet another area where the Internet is abused by organised criminals. We must ensure that law enforcement agencies have the modern operational and legislative tools to combat such cases effectively.” 

The European Monitoring Centre for Drugs and Drug Addiction has been assigned a key role in the detection and assessment of new drugs in the European Union, under the terms of the Council of the European Union’s directive 2005/387/JHA on information exchange, risk assessment and control of new psychoactive substances. The Council’s decision reflected the fact that 

“The particular dangers inherent in the development of psychoactive substances require rapid action by the Member States.” 

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Will the Minister comment on how the Home Office is working with the EMCDDA following that Council decision? In particular, will he comment on: the EMCDDA’s role as regards the early warning system, which identifies new drugs as they appear on the European market; a mechanism for assessing the risk posed by the drugs; and the decision-making process for placing products under control—something that we are starting to see with this temporary banning order that we are considering? 

I am concerned that the Home Office seems to become aware of drugs and legal highs long after they have been identified by the EMCDDA. As I understand it, the Home Office’s early warning system, to which the Minister referred, has so far identified 11 substances. However, since the Government came into office, the EMCDDA has identified 90 new substances—41 in 2010 and 49 in 2011—through its early warning system. Could the Minister explain that discrepancy? 

Could the Minister help me by confirming when this particular substance—I believe its street name is mexxy—came to the attention of the Home Office as a substance that needed to be considered and watched? I acknowledge that the legislation only came into force in November last year—it is only May now—but I wondered whether action could have been taken before the referral to the Advisory Council on the Misuse of Drugs in March. 

We all accept that there are lessons to be learned from the prevalence of mephedrone, the drug that was banned in 2010. Recent studies—including the Mixmag survey, the biggest survey of its kind—show that the prevalence of mephedrone has stayed at about the same level, even though it has been banned. That shows that a new drug can gain prevalence while it is legal, as in the case of methoxetamine, and that can mean that it will continue to be used, even once a ban is introduced. It also shows that the suppliers of such drugs are often criminal gangs and are not concerned about whether they are selling the drugs legally or illegally. I think that we can all agree that quick action against legal highs is necessary to stop drugs becoming established in the marketplace. 

In a report in November, the EMCDDA highlighted the fact that methoxetamine was one of the drugs being sold by the many internet stores that had opened up to sell mephedrone before that drug was banned. In January 2011, there were 14 online stores selling methoxetamine, but that had risen to 58 online stores by July 2011. That shows the worrying consequences of delays in banning legal highs. An acknowledgement that there is a problem with a substance allows it to become established in the marketplace. Will the Minister help me by saying how many other legal highs are being monitored by the Home Office, with a view to possibly being made subject to a temporary banning order in future? 

When I looked at the impact assessment, I noticed a reference to a risk factor: if a substance is banned, it may only take a little willingness to adapt some of the chemicals in that legal high to form another substance that would be a legal high. Does the Home Office think that anything can be done to mitigate the risk of substances being changed slightly, so that they are outside the temporary banning order? 

May I also ask about the education side? As the Minister said, it is very important that people know the effects of legal highs and when a temporary banning order has been put in place. The guidance section of the explanatory statement refers to communication, especially with young

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people, about the temporary banning order. There is real concern about the Government’s approach to ensuring that young people have all the relevant information and education that they need about drugs. 

Of particular concern is what is happening with the Drug Education Forum. As I am sure the Minister knows, it brings together 30 high-profile organisations, including the Association of Chief Police Officers and the National Society for the Prevention of Cruelty to Children. Those organisations share best practice on how to provide information to young people. The Drug Education Forum costs only £69,000 to run, but its money has been withdrawn by the Department for Education. I wrote to Lord Henley, who co-ordinates drugs policy for the Government, and was told that that was a matter solely for the Department for Education. I have not yet had a response from the Minister in that Department, but with the introduction of this first temporary banning order, it is important that the issue of how we get information to our young people is considered. I hope that the Minister will take that up with his ministerial colleague. 

I am also concerned that the Department for Education still seems to be dragging its feet on its review of personal, social and health education, which is an important way of educating young people in schools about the effects of drugs. Can the Minister enlighten us today on when the PSHE review will be completed? We will know then whether the Government are committed to education about drugs in schools. 

As the Minister knows, the Forensic Science Service closed at the end of March this year. The FSS was used for drug-profiling around legal highs, and for liaison work with other European countries. Will the Minister explain where that particular piece of work now sits? Is it with independent providers of forensic science? If so, which independent providers are doing that work? 

The last point I wanted to make was about the approach that Poland and Ireland seem to have taken to legal highs. Poland introduced a new law on 27 November 2011 that eliminates the open sale of psychoactive substances not controlled by drugs laws. A similar law was introduced in Ireland in 2010, which looks to penalise the suppliers, rather than the users. Have the Government spent any time looking at whether such as approach could be helpful in dealing with this complicated area? 

Dr Julian Huppert (Cambridge) (LD):  The hon. Lady is saying some interesting things. Is she arguing that nothing that is in any way psychoactive should be sold? She will be aware that nutmeg has hallucinogenic properties. Surely she does not mean to suggest anything quite that draconian and far-reaching? 

Diana Johnson:  The hon. Gentleman makes an interesting point, because there is an issue about legal highs and how to deal with products that may be sold legitimately as, say, plant food, and may well be plant food, but could have other effects that need to be examined. That is why, while we welcome the temporary banning order, it is as well to see what other countries are doing, and to consider whether we can learn from them. Could we be more effective in protecting people, especially young people, from the threat of legal highs? The list of legal highs will include many substances that, on the face of it— 

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The Chair:  Order. Context is important in debates of this kind, but I remind hon. Members that we are discussing a narrow subject. A broader discussion about drugs policy, and even education and health policy, would doubtless be instructive to us all, but those things are not the subject of our discussion. I make a general plea to all hon. Members to restrict themselves to the matter under debate. 

Diana Johnson:  I am grateful, Mr Havard. I have completed my comments. This is an opportunity to ensure that the order results in banning a substance that causes harm to people, particularly young people. I am sure that we all agree on that. 

4.46 pm 

John Mann (Bassetlaw) (Lab):  It is a pleasure to serve under your chairmanship, Mr Havard. I apologise for arriving slightly late, owing to a prior parliamentary engagement. 

I feel it is appropriate to comment on the order, because I suspect it will not be the last such order this Session—or this Parliament. I first highlighted the issue of legal highs in Parliament some years ago, by means of the first early-day motion on the subject, and through questions on the issue. The point that I made then I make again now: bringing forward statutory instruments time and again, as has begun to happen, and will happen in future, is merely chasing the problem. It becomes rather absurd: on each occasion, we chase a particular drug that has been created and sold, after its dangers and problems have been tested. As we catch one, the market moves on to the next one. 

It would be useful to know whether the coalition is looking to take a more comprehensive approach to such orders, or even to rewrite the law, so that specific orders are not required. Bringing cases to Parliament one by one is clearly not a way forward. The problems with the drug covered by the order, as with previous drugs, were identified some time ago, so we are playing catch-up. That is a fundamental issue. 

The law as currently framed is all that is available, so I do not criticise today’s order specifically, but the framework of law is behind the times, and insufficiently flexible. It means that order after order is necessary. Of course, the Liberals will always oppose them, and raise issues such as nutmeg, because that is the big difference in the coalition: free and easy use of drugs wherever possible— 

The Chair:  Thank you, Mr Mann. We could doubtless spend a great deal of time discussing the merits of, and divisions within, political parties, but that is not the subject of debate. Now that you have made that general point, I ask you to restrict yourself to the order, and the substance in question. 

John Mann:  I await with interest the Minister’s response. 

4.49 pm 

Damian Green:  I am grateful to the hon. Member for Kingston upon Hull North for her thoughtful speech, and to the hon. Member for Bassetlaw for asking for a complete revamping of drugs policy. If I entered into that debate today, you, Mr Havard— 

The Chair:  We will stick to the detail today. 

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Damian Green:  Indeed I will, as you say. 

I want to address the points raised by the hon. Member for Kingston upon Hull North. I have mentioned that the order was made after consideration of evidence that methoxetamine poses a clear threat to public health and safety, not least to that of young people who believe the traffickers’ claims that legal highs are safer than controlled drugs. The ACMD’s initial advice included further recommendations to the Government about public health messages and information sharing about the drug. Although the FRANK drug information and advisory service continues to be updated with the latest evidence on the harms caused by drugs, and to set out legal changes, we continue to communicate updates to enforcement, health and forensic partners, through the appropriate channels. 

As part of the wider background to this temporary class order on methoxetamine, we also considered the ACMD’s thematic advice on tackling new psychoactive substances, which the Home Secretary commissioned last year and published in the autumn. The ACMD made a number of high-level recommendations on a broad range of policy approaches, including legislation, and its advice has helped to inform the cross-Government action plan on tackling new psychoactive substances, which was published last week. The action plan consolidates current activity, sets the direction for further work and complements the wider drug strategy. It is published alongside the strategy’s first annual review. 

The Committee might be aware that the ACMD has also agreed to the Home Secretary’s request, in her annual commissioning letter in March, that it keeps its work on new psychoactive substances a priority, in order to continue to inform policy. The hon. Member for Kingston upon Hull North made some good points on the subject. At an international level, alongside Japan and Australia, we led the introduction, in March, of a United Nations resolution, through the UN Commission on Narcotic Drugs, to encourage the international community to tackle the threat from new psychoactive substances by improving monitoring, research, analysis and forensic capability, and by sharing information among themselves. The resolution was adopted in full. 

On why the order is about methoxetamine and not other psychoactive substances, we continue to monitor, and the ACMD continues to review, the situation of other substances in the UK, using and sharing information from our drugs early warning system. Since mephedrone, no psychoactive substance had emerged as a stand-out drug, capable of gaining a foothold in the UK drug market, but before the order was made we were getting increasing evidence of harm caused by methoxetamine in the UK, and a suggestion that it was gaining popularity, and that is why this is the first order of its kind. 

The hon. Lady talked about the EMCDDA system. The Government recognise the shortcomings of the 2005 Council decision, which were brought into sharp focus with the introduction of new psychoactive substances. Although common EU controls can enhance law enforcement and judicial co-operation, for the most part the UK has already controlled the substances that have been the subject of decisions under the 2005 Council instrument. It is worth noting that the EMCDDA confirms that other member states are now adopting our approach to controlling psychoactive substances, through generic definitions that capture specific drugs

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and closely related family members. The European Commission is considering a new instrument to replace the 2005 Council decision, as a result of the shortcomings identified. The EMCDDA reports substances only when they are identified in the EU for the first time. Some of the substances mentioned in the early warning system report have already been identified in other member states and included by the European authorities in previous reports, and our reporting years differ, which is why some of the 17 substances in the report on the forensic early warning system have already been reported at a European level. 

The hon. Lady asked how the early warning system works. When methoxetamine was identified as a threat, the Home Office distributed a request for information on the substance across our partners—drugs, early warning and information-sharing systems—and, in response, information on its prevalence and the harms associated with it were received from law enforcement and health bodies. The UK focal point disseminated a similar request for information across national and international networks, so that was done on an international basis. We needed that proper evidence base to act as we have done. The key difference is that it has not taken months, as it did with mephedrone, which allowed much greater supply to build up; this has taken only weeks. This system is markedly faster than the previous system. The advantage is that if we see the supply curve rising, we can act earlier, before the drug takes hold. 

There is some evidence to support that. The hon. Lady rightly mentioned the internet sites that sell such drugs, and there is evidence that the implementation of the temporary class drug order has had a real impact in tackling internet sales of methoxetamine. More than

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70 websites that had offered the drug for sale before the ban have now ceased to do so. As I say, this is the first time that this method has been used, but the early signs are encouraging. It appears to be effective as soon as it is introduced. We are using generic definitions, based on the ACMD evidence, to future-proof as much as possible. Clearly, there are ingenious and unpleasant people out there who will try to get around the definitions, but we know about that. 

We recognise that a purely legislative response is not the answer to tackling drugs. The hon. Lady mentioned education; obviously, I cannot speak on behalf of colleagues at the Department for Education, but I will ensure that they are aware of the points that she has made. We will continue, across Government, to work harder on drug education. She also asked about the Forensic Science Service. The work that she mentioned now sits with the Serious Organised Crime Agency, working with the new forensic providers. 

I ask the Committee to look on the order favourably, as it is based on an assessment of evidence and advice from independent drug experts, and gives due regard to matters of public protection. The order will continue to enable enforcement action to disrupt the illicit trade and curtail the availability of methoxetamine. It will also support our policy of protecting the public from the potentially devastating impact of the drug on the lives of users, those around them and the wider community. I hope that the Committee will approve the order. 

Question put and agreed to.  

4.57 pm 

Committee rose.  

Prepared 22nd May 2012