APPENDIX 1
Memorandum from the Government
1. THE CLASSIFICATION
OF ILLEGAL
DRUGS
Introduction
1.1 The Drug Strategy is a cross-government
programme of policies and interventions designed to address the
breadth of drug issues in the UK. There are four main elements
of the strategy—young people, reducing supply, treatment
and reducing drug-related crime. The Home Office leads on the
delivery of the Strategy in collaboration with a number of other
Government Departments, NGO's and a wide network of stakeholders.
1.2 The Updated Drug Strategy 2002 sets
out a range of interventions that concentrate on the most dangerous
drugs, the most damaged communities and individuals whose addiction
and chaotic lifestyles are most harmful. It focuses on aims which
complement action to restrict supply of illegal drugs with the
action to diminish demand for drugs.
1.3 Illegal drugs are controlled substances
defined by drugs legislation (primarily the Misuse of Drugs Act
1971); the Strategy does not cover alcohol misuse which is the
responsibility of the Department of Health.
1.4 A key factor of the strategy is the
classification of substances under the Misuse of Drugs Act 1971.
With the focus of the strategy being Class A drugs, the legal
position of a substance clearly directly relates to the harms
it poses, and the level of enforcement activity that it attracts.
1.5 Advice on classification issues is primarily
presented to the Government by the Advisory Council on the Misuse
of Drugs (ACMD).
Legislation
1.6 The Misuse of Drugs Act 1971 (MDA) divides
controlled drugs into three Classes; A, B and C. These Classes
are linked to maximum penalties for related offences, in a descending
order of severity, from A being the highest, to C, the lowest.
The three-tier classification was designed to make it possible
to control particular drugs according to their comparative harmfulness
either to individuals or to society at large when they were misused.
| Class A
| Class B | Class C
|
|
Examples | Cocaine, Crack, Ecstasy, Heroin, Magic Mushrooms
| Amphetamines, Barbiturates, Methylamphetamine
| Cannabis, Anabolic Steroids, Benzodiazepines, Buprenorphine, GHB, Ketamine
|
| |
| |
Penalties
1.7 The main offences under the 1971 Act are:- unlawful
production and supply; and unlawful possession; and possession
with intent to supply unlawfully.
1.8 The current maximum penalty for trafficking/supplying
in Class A drugs is life imprisonment; and in Class B or C drugs
is 14 years imprisonment. Possession of a Class A drug attracts
a maximum penalty of seven years; for Class B a penalty of five
years and for Class C, two years imprisonment.
1.9 Maximum penalties are not the standard or average
penalty to which offenders are liable in all cases: rather they
allow the courts discretion when dealing with individual cases.
However, in the case of trafficking offences involving Class A
drugs, there is, under the Crime Sentences Act 1997, a mandatory
minimum sentence of seven years custody for the third such offence.
1.10 Section 7 of the MDA 1971 allows for regulations—currently
the Misuse of Drugs Regulations 2001—to be made which authorise
activities otherwise made illegal under the act. The Regulations
identify those who may legitimately handle particular drugs, describe
the circumstances in which drugs may be handled and control the
purposes for which a particular drug may be applied. They also
regulate where a drug may be produced or supplied.
The Advisory Council on the Misuse of Drugs (ACMD): Terms of
Reference, Background and Membership
1.11 The Advisory Council on the Misuse of Drugs (ACMD)
is a statutory and non-executive non-departmental public body,
established by the Misuse of Drugs Act 1971.
1.12 Professor Sir Michael Rawlins is the Chair of the
ACMD—he is a Professor of Clinical Pharmacology at the University
of Newcastle and chair of the National Institute for Health and
Clinical Excellence (NICE).
1.13 The terms of reference of the ACMD are provided
for by Section 1 of the MDA 1971. In summary, the ACMD has a statutory
duty to keep under review the situation in the United Kingdom
with respect to the misuse of drugs and to advise Ministers of
the measures which they consider should be taken to deal with
social problems which arise from drug misuse. In addition, the
ACMD has a duty to consider any matter relating to drug dependence
or misuse that may be referred to them by Ministers. The Home
Secretary is obliged by law to consult the ACMD before laying
Orders or making regulations. This includes decisions relating
to the classification of drugs. The full terms of reference as
laid out in the Misuse of Drugs Act 1971 are attached in the Annex.
1.14 The scope of the statutory remit of the organisation
is necessarily reflected in the wide range of its membership which
includes police, judiciary, academics, GPs and other health care
professionals, drug treatment service providers and the voluntary
sector. Members of the ACMD, of whom there should be not less
than 20, are appointed by the Secretary of State for a term of
three years and in accordance with the guidance issued by the
Office of the Commissioner for Public Appointments. Nominations
come from a wide range of sources including relevant professional
bodies, Public Appointments Unit of the Cabinet Office and self-nomination.
Under the terms of the MDA 1971 the ACMD is required to include
representatives of the practices of medicine, dentistry, veterinary
medicine and pharmacy, the pharmaceutical industry, and chemistry
(other than pharmaceutical chemistry); and members who have a
wide and relevant experience of social problems connected with
the misuse of drugs.
1.15 Membership currently stands at 38, including the
Chair. The current term of office for members began on 1 January
2005. It will expire on 31 December 2007. All members are unpaid,
although expenses are reimbursed.
1.16 The scope of the ACMD work runs across Government
and officials from Department of Health, DfES and the devolved
administrations are represented at Council meetings and those
of the sub-committees. Representatives from other agencies are
invited to meetings where appropriate. The position of these officials
and representatives is that of "observer/adviser" rather
than as a full member. Mainly they contribute by responding to
questions of members or by asking questions for clarification
of the discussion. They are there to support the ACMD in its functions.
The Advisory Council on the Misuse of Drugs (ACMD): Secretariat
1.17 The full Council currently meets routinely twice
a year although it has powers to meet more frequently if required
or requested. It has no staff or budget of its own, but administrative
support and funding is provided by the Secretariat comprising
of staff from the Drugs Legislation and Enforcement Unit (DLEU)
of the Home Office's Drug Strategy Directorate. The team currently
consists of four full time members of staff of various grades.
The Secretariat forms the conduit between the ACMD and Ministers.
1.18 The functions of the Secretariat are important.
Not only do they co-ordinate and arrange the day to day business
of the ACMD, including organising meetings, dissemination of papers
and development of work streams, but, as indicated above, they
act as the key communication link between the Home Office and
the ACMD.
1.19 This role manifests itself in a number of ways,
from the purely administrative (eg arranging and co-ordinating
schedules and timetables for work that are satisfactory to both
organisations) to the more complex. ACMD work programmes, and
its reports and recommendations to Government, are invariably
supported by explanatory (and/or progress) notes from the Secretariat
describing the nature, remit and background of the work being
carried out by the Council. The Secretariat provides a direct
link between the Government and the Council, and enables effective
communications to take place.
Commissioning and Receipt of Scientific Advice from the ACMD
1.20 There are two key ways in which the ACMD's agenda
is determined. Firstly, the ACMD is statutorily obliged to consider
any relevant issue referred to them by the Government. This can
relate specifically to the classification of a certain substance
or substances, or to any other issue relating to drug misuse in
the UK. Secondly, the ACMD is at liberty to set its own agenda
(in addition to any tasks requested of it by Government) in response
to the concerns or issues it is made aware of, either through
the professional experience of its members or any other means.
1.21 When the Government requires advice on the classification
of drugs from the ACMD, the usual process is for the work to be
commissioned by way of a letter from the Home Secretary, the relevant
Minister, or senior departmental official to Professor Sir Michael
Rawlins, the chair of the ACMD, setting out what issues advice
is required upon, and giving an idea as to the desired timescale
for the work.
1.22 Through the secretariat, and in discussion with
Ministers'/Senior Officials' private offices, timescales for the
work are agreed, and the ACMD accept the commission, together
with a target date for completion. This date is usually made public,
either by way of routine correspondence or parliamentary questions,
or during a debate in Parliament. This process ensures visibility
and accountability, both to Parliament and the public, including
on the setting of reasonable and realistic timescales.
1.23 On completion of their work, the ACMD will usually
submit their advice on classification in the form of a report,
with or without an executive summary (dependent upon its length
and the complexity of the issues concerned), and with a covering,
introductory letter from the Chair. Recommendations on classification
issues are usually submitted directly to the Home Secretary, with
Home Office and other Government Ministerial colleagues copied
in where appropriate.
1.24 Other advice and recommendations from the ACMD on
issues other than classification may be presented in the same
way as outlined above, or simply by way of a letter from the Chair
to the appropriate Minister, or from the Secretariat to Ministers
and Senior Officials on behalf of ACMD.
Additional sources of evidence
1.25 It is important to remember that, although the key
advice on classification of drugs comes from the ACMD, there are
a number of other sources of information and advice which may
come to Ministers. This may include other published research,
consultations with key stakeholders, and the advice and experiences
of practitioners within the drugs field upon whom the issue of
classification has a direct impact (eg police enforcement colleagues
and NGOs).
Government Consideration of Scientific Advice on the misuse
of drugs
1.26 On receipt of a report from the ACMD regarding the
classification of drugs the Home Secretary will usually require
a period of time to consider the detail of the report and to analyse
the Council's recommendations. In the majority of cases, and on
the presumption that the period will not be too protracted, the
ACMD will usually agree to defer the publication of their completed
report and recommendations until the Government is ready to make
its announcement on its chosen course of action (ie whether or
not to accept the ACMD's recommendations, and any other actions
Government sees fit). Their report can then be published on the
same day as the Government announcement, making the recommendations
and decisions public simultaneously.
1.27 Key stakeholders, and the ACMD would usually be
informed of the decision shortly before an announcement is made,
except where protocol requires that Parliament be told first.
Work plans and implementation strategies for recommendations are
developed and set in motion.
Criteria for consideration
1.28 ACMD advice usually takes a number of factors into
account. These include: the physical harm to the individual of
taking the drug on a single occasion and after prolonged use;
the degree of pleasure; and the drug's potential for physical
and psychological withdrawal; the effects on intoxication as well
as harm to families and communities. The membership of the ACMD
is sufficiently broad to ensure all of these issues are addressed
in some detail in formulating advice for Government, but it is
also able to take evidence from experts in the field.
Case Studies of Particular Interest to the Select Committee
1.29 It is our understanding the Select Committee has
commissioned some independent research into drug classification
to help focus their thinking on this matter, and that, at the
request of the clerk, some specific reference in our written evidence
to the case studies below, would be helpful:
Cocaine
1.30 The Government have not asked the ACMD to carry
out any recent assessments into the classification of cocaine,
nor has the Council presented any recommendations on this substance
to the Government of its own volition.
Cannabis
1.31 The issue of cannabis classification has, without
doubt, been the most high profile classification debate in recent
years. Following a referral by the then Home Secretary, David
Blunkett, the ACMD recommended in 2002, following a detailed review
of the scientific evidence, that cannabis should be reclassified
from Class B to Class C. This was on the basis that, whilst cannabis
could exacerbate existing mental health conditions, the harms
it posed were not of the same order as those posed by other Class
B drugs (for example: amphetamines).
1.32 The then Home Secretary accepted the recommendation,
and in January 2004 Cannabis was reclassified as a Class C drug.
1.33 Following the reported emergence of new evidence
strengthening the possibility of a causal link between cannabis
use and onset of mental health problems, and the reported increase
in incidence of high THC content "skunk" varieties of
cannabis, the Home Secretary, Charles Clarke, asked the ACMD,
in March 2005, to again provide advice on the issue of cannabis.
He requested specific advice on the points mentioned above, but
also requested an assessment of the classification issue. The
process outlined in the section above was followed and the ACMD
presented their comprehensive report and recommendations to the
Home Secretary in December 2005. At the time of writing this submission
(early January 2006) the Home Secretary was considering the detailed
evidence presented to him in advance of announcing a decision.
Magic Mushrooms
1.34 The recent legislative change to the position of
magic mushrooms came about as a result of a slightly different
process to that outlined above. Case law had developed such that
courts were of the opinion that unless the mushrooms were "prepared"
(ie dried, prepared, packaged or cooked in anyway) that they were
not, in fact controlled drugs. As a result, markets selling magic
mushrooms were appearing across the country.
1.35 Magic Mushrooms are a powerful hallucinogen and
can cause real harm, especially to vulnerable people and those
with mental health problems. The substantial increase in the commercial
sale of magic mushrooms in the UK raised concerns regarding public
health.
1.36 Section 21 of the Drugs Act 2005, which came into
force on the 18 July 2005, makes it an offence to import, export,
produce, supply and possess with intent to supply magic mushrooms,
whatever form they are in, whether prepared or fresh.
1.37 Because this was primarily a matter of legal clarification
the Government was not obliged to seek scientific advice in the
usual format from the ACMD. However, they did write to the ACMD,
and ask for its views on their proposals before the Drugs Bill
was introduced. The ACMD agreed that a clarification of the legal
position was necessary.
Ecstasy and Amphetamines
1.38 In spring 2004, the Home Office asked the ACMD to
consider Methylamphetamine, specifically whether its current classification
as a class B drug was appropriate. The Technical committee of
the ACMD established a Methylamphetamine working group which presented
its preliminary findings to the ACMD's full meeting in November
2004. The committee advised that the current classification of
methylamphetamine was appropriate, but was asked by the ACMD to
consider issues relating to early warning systems and research
further. It held further meetings and reported back to the ACMD.
The ACMD presented their recommendations to the Home Secretary
in November 2005. He accepted their recommendations in full, but
given the nature of the drug, and the risk of the prevalence in
the UK increasing, he asked the ACMD to keep a watching brief
on the issue, and provide further advice in 12 months.
1.39 The Government have not asked the ACMD to carry
out any recent assessments into the classification of either ecstasy
or amphetamine (sulphate), nor has the Council presented any recommendations
on these substances to the Government of its own volition.
January 2006
Annex
ADVISORY COUNCIL ON THE MISUSE OF DRUGS
TERMS OF
REFERENCE
"It shall be the duty of the Advisory Council to keep
under review the situation in the United Kingdom with respect
to drugs which are being or appear to them likely to be misused
and of which the misuse is having or appears to them capable of
having harmful effects sufficient to constitute a social problem,
and to give to any one or more of the Ministers, where either
Council consider it expedient to do so or they are consulted by
the Minister or Ministers in question, advice on measures (whether
or not involving alteration of the law) which in the opinion of
the Council ought to be taken for preventing the misuse of such
drugs or dealing with social problems connected with their misuse,
and in particular on measures which in the opinion of the Council,
ought to be taken:
For restricting the availability of such drugs or supervising
the arrangements for their supply;
For enabling persons affected by the misuse of such drugs
to obtain proper advice, and for securing the provision of proper
facilities and services for the treatment, rehabilitation and
after-care of such persons;
For promoting co-operation between the various professional
and community services which in the opinion of the Council have
a part to play in dealing with social problems connected with
the misuse of drugs;
For educating the public (and in particular the young) in
the dangers of misusing such drugs and for giving publicity to
those dangers; and
For promoting research into, or otherwise obtaining information
about, any matter which in the opinion of the Council is of relevance
for the purpose of preventing the misuse of such drugs or dealing
with any social problem connected with their misuse".
A further duty is placed on the Council by the Act to consider
any matter relating to drug dependence or the misuse of drugs
which may be referred to them by any one of the Ministers concerned,
and in particular to consider and advise the Home Secretary on
any communication which he refers to the Council which relates
to the control of a dangerous or otherwise harmful drug and which
is made to Her Majesty's Government by any organisation or authority
established by treaty, convention or other agreement or arrangement
to which Her Majesty's Government is a party.
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