Psychoactive Substances Bill [HL]

Explanatory Notes

Legal background

The Misuse of Drugs Act 1971

25 The 1971 Act provides the legislative framework for the regulation of dangerous or otherwise harmful drugs in the UK. The 1971 Act applies to "controlled drugs" - there are two categories of controlled drugs. First, substances or products specified in Schedule 2 to the Act. That Schedule divides controlled drugs into one of three Classes – A, B and C – broadly based on their relative harms, with Class A drugs considered the most harmful. Examples of each class of drug are: Class A - cocaine, methadone and opium; Class B - amphetamine, cannabis and ketamine; Class C - khat and temazepam. The second category of controlled drugs is any substance or product specified in a temporary class drug order as a drug subject to temporary control (see below).

26 The 1971 Act provides for a range of offences in relation to controlled drugs, including:

importation and exportation (section 3);

production, supply or offering to supply (section 4); and

possession and possession with intent to supply (section 5).

27 Section 7 of the 1971 Act enables regulations to be made exempting specified activities from the scope of the above offences, for example where controlled drugs are produced and supplied for medicinal purposes.

28 The maximum penalties for the offences under sections 3 to 5 of the 1971 Act vary according to the class of the controlled drugs, with higher maxima applying for the more or most harmful drugs. The maximum penalties are set out below.

Offence

Maximum penalty on conviction on indictment: Class A drug involved

Maximum penalty on conviction on indictment: Class B drug involved

Maximum penalty on conviction on indictment: Class C drug involved

Production

Life imprisonment

14 years' imprisonment

14 years' imprisonment

Supply or offering to supply

Life imprisonment

14 years' imprisonment

14 years' imprisonment

Possession

7 years' imprisonment

5 years' imprisonment

2 years' imprisonment

Possession with intent to supply

Life imprisonment

14 years' imprisonment

14 years' imprisonment

Temporary Class Drug Orders

29 The Police Reform and Social Responsibility Act 2011, which inserted sections 2A and 2B into the 1971 Act, confers powers on the Secretary of State to make TCDOs if two conditions are met.

30 The first condition is that the substance is not a Class A, B or C drug. The second condition is that the Secretary of State has either consulted the ACMD, or in cases of urgency the chair of the ACMD, and has determined that the order should be made, or otherwise has received a recommendation to that effect from the ACMD. After carrying out such consultation the Secretary of State can only proceed to make the order if it appears that the drug is one that is being, or is likely to be, misused, and that misuse is having, or is capable of having, harmful effects. A corresponding requirement applies before the ACMD may make a recommendation for the making of such an order.

31 A TCDO expires at the end of 12 months unless, if earlier, the temporary class drug is brought under the permanent control of the 1971 Act by virtue of an Order in Council under section 2(2) of the 1971 Act or if the TCDO is revoked.

32 The restrictions on importation and exportation, production and supply apply to a temporary class drug (with the maximum penalty being those applicable to a Class C drug), but it is not an offence to have a temporary class drug in a person’s possession, unless that possession is in connection with an offence or prohibition under other provisions of the 1971 Act. So the offence of possession with intent to supply applies to a temporary class drug.

33 Four TCDOs have been made to date:

The Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2012 (SI 2012/980) came into force on 5 April 2012. This Order covered a group of substances commonly known as methoxetamine. Following this, the ACMD provided advice in October 2012 which concluded that the harms posed by these substances were commensurate with those posed by Class B substances. The Misuse of Drugs Act 1971 (Amendment) Order 2013 (SI 2013/239), which came into force on 26 February 2013, duly classified these substances as Class B controlled drugs.

The Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2013 (SI 2013/1294) came into force on 10 June 2013. This Order covered substances, including 251-NBOMe, 5 and 6-APB (benzofuran compounds) and other related substances. The ACMD then reviewed the harms posed by these substances and recommended that 251-NBOMe should be a Class A controlled drug and that the benzofuran compounds should be Class B controlled drugs. The Misuse of Drugs Act 1971 (Ketamine etc.)(Amendment) Order 2014 (SI 2014/1106), which came into force on 10 June 2014, gave effect to these recommendations.

The Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2015 (SI 2015/1027) came into force on 10 April 2015. This Order covered methylphenidate-related materials and specified derivatives. This TCDO lapsed on 27 June 2015 and was replaced by a further order (see below).

The Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 2) Order 2015 (SI 2015/1396) came into force on 27 June 2015. This Order covered seven methylphenidate-based compounds and specified derivatives. The majority of these substances and products were made the subject of temporary control by the Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2015. That Order was made whilst Parliament was dissolved and lapsed on 27 June 2015 as there was insufficient Parliamentary time available for each House of Parliament to approve the Order. This Order replaced that Order and lists two additional substances.

34 The Bill is not a replacement for the 1971 Act and it is expected that some psychoactive substances will continue to be classified under it in circumstances where there is evidence of harms, assessed by the ACMD, and considered sufficient to justify control with the application of the higher penalties and the offence of simple possession.

Prepared 22nd July 2015