Draft Misuse of Drugs Act 1971 (Amendment) Order 2011

The Committee consisted of the following Members:

Chair: Mr Graham Brady 

† Bradley, Karen (Staffordshire Moorlands) (Con) 

† Brake, Tom (Carshalton and Wallington) (LD) 

† Brokenshire, James (Parliamentary Under-Secretary of State for the Home Depa r tment)  

† Buckland, Mr Robert (South Swindon) (Con) 

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

† Efford, Clive (Eltham) (Lab) 

† Flynn, Paul (Newport West) (Lab) 

† Green, Kate (Stretford and Urmston) (Lab) 

† Huppert, Dr Julian (Cambridge) (LD) 

† Mercer, Patrick (Newark) (Con) 

Mowat, David (Warrington South) (Con) 

† Pawsey, Mark (Rugby) (Con) 

† Rudd, Amber (Hastings and Rye) (Con) 

† Shannon, Jim (Strangford) (DUP) 

† Stringer, Graham (Blackley and Broughton) (Lab) 

† Tami, Mark (Alyn and Deeside) (Lab) 

Watson, Mr Tom (West Bromwich East) (Lab) 

† Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Alison Groves, Committee Clerk

† attended the Committee

First Delegated Legislation Committee 

Wednesday 16 February 2011  

[Mr Graham Brady in the Chair] 

Draft Misuse of Drugs Act 1971 (Amendment) Order 2011 

2.30 pm 

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire):  I beg to move, 

That the Committee has considered the draft Misuse of Drugs Act 1971 (Amendment) Order 2011. 

Good afternoon to you, Mr Brady, and to the Committee. 

The Order in Council was laid before Parliament on 10 January. If made, it will bring two new drugs—tapentadol and amineptine—under the control of the 1971 Act and clarify the legislation on mephedrone. Tapentadol is a recently developed, centrally acting analgesic, which is likely to be marketed in the UK in the near future, following the granting of marketing approval by the Medicines and Healthcare products Regulatory Agency. 

The effects and risks associated with tapentadol are similar to those of other opioid analgesics, including hydromorphone and morphine, which are both controlled as class A drugs under the 1971 Act. Tapentadol presents a risk of addiction, diversion from legitimate sources and potential medicinal misuse. The risks associated with an overdose of tapentadol are constriction of the pupils, vomiting, loss of consciousness, seizures, difficulty in breathing and a risk of serious complications likely to lead to death. 

Amineptine is a powerful and fast-acting antidepressant developed in France a few decades ago, but it has been subsequently withdrawn from the French market. In 2003, the Commission on Narcotic Drugs, on the recommendation of the World Health Organisation, decided to include amineptine in schedule II of the convention on psychotropic substances of 1971. As a signatory to the 1971 convention, the UK is scheduling amineptine under the 1971 Act to meet its international obligations. 

Clinical studies indicate that amineptine has the potential both for dependence and misuse, predominantly in patients with a previous history of substance misuse. The withdrawal symptoms associated with amineptine include anxiety, psychomotor agitation and insomnia. Instances of dependence have been reported in Asia and Europe. 

The Government have consulted the Advisory Council on the Misuse of Drugs, as required under the 1971 Act, on both drugs. In July last year, the advisory council provided advice on tapentadol and amineptine after considering their harms. The advisory council reports that there is no evidence of the licit or illicit use of tapentadol or amineptine in the UK. However, the ACMD supports the control of both drugs due to the potential harm associated with their misuse. 

The advisory council also recommends that tapentadol and amineptine are controlled under the 1971 Act, in classes A and C respectively, and schedule 2 to the Misuse of Drugs Regulations 2001. I have accepted the advisory council’s recommendations. 

Members of the Committee will recollect that mephedrone and other cathinone derivatives—a group of so-called legal highs—were brought under the control of the 1971 Act as class B drugs from 16 April 2010, with cross-party agreement in the final days of the previous Parliament. If made, the order will also clarify the legislation on mephedrone, subsuming mephedrone within the generic definition used to control other cathinone derivatives at that time. 

Under the current drafting of the legislation, there can be uncertainty about which paragraph—1(a) or 1(aa) of part 2 of schedule 2 to the 1971 Act—is applicable to a given sample when preparing a charge for offences relating to mephedrone. The order will ensure clarity and consistency for prosecutors, enabling all charges for the possession, supply and production of mephedrone to be prepared under the generic definition in paragraph 1(aa) of part 2 of schedule 2 to the 1971 Act. 

The order, if made, will ensure that the UK honours its obligations as a signatory to the 1971 UN convention and takes precautionary measures, based on the assessment of harms and the potential for misuse highlighted by the advisory council, by controlling tapentadol and amineptine under the 1971 Act. We intend to make two further related statutory instruments, which will be subject to the negative procedure, to amend the Misuse of Drugs Regulations 2001, by inserting tapentadol and amineptine in schedule 2 to the 2001 regulations and bringing mephedrone within the generic definition in the 2001 regulations, as amended. 

The Misuse of Drugs (Designation) (Amendment) Order will similarly amend the 2001 designation order and bring mephedrone within the generic definition in that order. The instruments will be laid before the House in time to come into force at the same time as the order, if it comes into force as proposed. The Government will publicise the approved law changes on tapentadol and amineptine and the clarification of the legislation on mephedrone through a Home Office circular. I commend the order to the Committee. 

2.35 pm 

Clive Efford (Eltham) (Lab):  I have read the report of the debate on the statutory instrument in the House of Lords and some of the points raised then have been addressed, but I would like to ask the Minister one or two questions. We accept the Government proposal on classifying amineptine and tapentadol, but reference was made in the House of Lords to consultation, to which the Home Office response was that further consultation was not necessary because the MHRA and ACMD had carried out substantial consultation. Is that the normal process? 

After those organisations have held substantial consultations before a Government decision on the classification of drugs, is it usual for the Government not to carry out further consultations; or was the advice from the Department that further consultation was not necessary because of the length of time that these drugs have been under consideration? 

With that in mind—this may relate to our debate yesterday in the Committee that is considering the Police Reform and Social Responsibility Bill—the ACMD wrote to the Minister on 27 July about these two drugs. It is six months later; why has it taken so long for the Government to respond to the ACMD? Why did they not respond sooner? 

On education, what are the implications of the cuts in local government finance on educating people about the dangers of these drugs and on the ability of local authorities, education authorities, youth services and others to educate young people in particular about the dangers of these legal highs, as well as other drugs? 

Finally, we accept that the orders on mephedrone will simplify the process of taking legal action against anyone charged with supply or possession, so we have no further questions on that, but will the Minister respond to the other points? 

2.39 pm 

Dr Julian Huppert (Cambridge) (LD):  I will be brief, but I could not resist the temptation, having spent considerable time yesterday with the Minister discussing the theoretical aspects of the ACMD, to consider some of the chemical aspects. I thank him for the opportunity to revisit my organic chemistry. My hon. Friend the Member for Carshalton and Wallington, who is sitting next to me, suggested that I quiz the Minister on the structure of these drugs, but I have the answers here if he wants them. 

I am interested in understanding the reasons for the delay over the two new drugs—amineptine and tapentadol. I have considered the ACMD discussions and looked at the other available information, and I am entirely relaxed about what is happening with those drugs. 

I am also interested in understanding a bit more about the change that is happening with mephedrone, because there is quite a history with that. I am struggling, perhaps having missed discussions in the past, to understand why the change is necessary. The legislation seems to have been written very oddly. Mephedrone—or 4-methylmethcathinone—is already classified, as the Minister says, under paragraph 1(aa), except for the fact that it was specifically listed as not counting in that category. Will the Minister comment on why that is? It would clearly be covered under paragraph 1(aa)(i) as an alkyl derivative in the previous strategy. Why was it pulled out for separate consideration? Was that done to get some public recognition that it was specifically listed, or was there some other subtlety to the distinction? 

2.40 pm 

Paul Flynn (Newport West) (Lab):  We would have to go back to 1971 to discover why we are in this extraordinary position. In that year, the Act was passed with the affirmation of all parties in the House, which is almost a guarantee of a bad law. I think that James Callaghan was the Minister responsible for the 1971 Act. The spirit behind it was to eliminate all controlled—that was the extraordinary expression—drug use. That was going to be got rid of altogether, not only here, but in every country in the world. Other Acts were passed throughout the world in 1968 and 1970 to get rid of the tiny amount of use of drugs such as heroin and cocaine. The scale of

the problem in Britain at that time was such that we had fewer than 1,000 heroin and cocaine addicts. The 1971 Act has been so successful that the latest figures show that we have 320,000 addicts. 

The brief behind the order is that by banning substances we reduce their use. I should like to hear the evidence for that. All my experience of 40 years has shown that by banning substances we increase their use. We increase the profits that can be made from them and the market responds. That is what happened when there was a prohibition of alcohol in America. When substances are suppressed, we create an empire of crime, which is very profitable. 

The Chair:  Order. Fascinating as the wider debate on alcohol or drugs policy may be, may I request that the hon. Gentleman return to the specific matter of the drugs to which the order refers? 

Paul Flynn:  I accept that, Mr Brady. We must establish, however, why the Act, which is a piece of legislative drivel, has been passed by the House for more than 40 years without anyone asking, “Is it going to do any good? Is it going to do any harm?” 

I believe that amineptine is sold in France under the name, “mediator”, and there is great controversy about that now. It was a unique antidepressant in France, but people have discovered that it does great harm and the less it is used the better. 

The other drug is being classed as a class A drug. The most recent example of a major class A drug classification occurred in the House a few weeks before the 2005 election. On that occasion, the House, in its wisdom, classified magic mushrooms—which never knowingly killed or poisoned anyone—as a class A drug alongside heroin, with exactly the same punishments. Again, people tried to appeal to the tabloid press and no major party in the House opposed that absurd legislation. 

The Minister has said that neither drug is used in this country—up until now. We are probably doing what we have done with so many drugs—popularising them. We are introducing them to people and arousing their curiosity. The drugs will certainly do harm, but most medicinal drugs will do so. The horrifying adverse reactions that have been read out can be applied to many drugs that are accepted medicinally. 

I cannot understand why we go on like this. We know about the instructions from the Government, because we have heard an interesting statement from a new Member of Parliament: the hon. Member for Totnes (Dr Wollaston) said that she was instructed by the Whip that, when she comes along to such a Committee, all she has to do is sit there, shut up and not say anything unless it agrees with Government policy. I do not suppose, therefore, that we will hear a great deal from anyone apart from the distinguished hon. Member for Cambridge, who would not take such instructions anyway. 

I hope that there will come a day when we will consider the monumental 40 years of abject failure of drugs policy in this country. We have created the problem—there have been 40 years of prohibition; it has never worked. What happens? A Government come along and say, “We have a tough policy; it hasn’t worked. We’ll have an even tougher one,” which will not work anyway. That is part of the argument about the order

today, which is another increment on the road of that fatuous failure of policy, which is based on the myth that, by banning so-called controlled drugs, we reduce their use. 

In any prison in this country, alcohol and drugs are available. Mr Brady, one of your colleagues explained to me that he went to visit someone in prison, who said, “I’ve got a toothache and I’d like to take something for it. I’ll have to wait until tomorrow to get a doctor’s note for a paracetamol or an aspirin, but I can go from this room and within 10 minutes I can get alcohol, whisky, heroin, cocaine or marijuana.” That situation mocks this legislature, in that we believe that we are controlling drugs; we are doing nothing of the sort. By passing the order and by drawing attention to those unused drugs, we might well find that in a year’s time they are the fashionable drugs and the ones that are used. 

2.46 pm 

James Brokenshire:  It is always a pleasure to follow the hon. Gentleman. I know that the views that he has expressed are consistent and long held. Indeed, over the past few years, I have heard similar contributions underlining his points, although I obviously disagree with him. In the context of this debate, I will not stray more widely on to broader drugs issues. The House in Westminster Hall had an opportunity to discuss some of those broader issues before Christmas last year. I am sure that we will return to them during this Parliament, as the Government follow through with the implementation of our new drugs strategy, which is about reducing demand, controlling supply and promoting recovery, but I will not stray further. 

The hon. Gentleman said that the drugs are not available. Tapentadol will be available as a medicine in the UK, once the appropriate controls have been brought into effect. We therefore believe that it is necessary to ensure that appropriate protections are introduced, such that, when the drug is available in the UK for use in health care, its prescribing, storage, record-keeping and destruction will be regulated. That will help to prevent the diversion and misuse of the drug and to resolve patient safety issues. 

I thank the hon. Member for Eltham for his support for and recognition of the proposals in the order. I hope that I will be able to address the questions that he has asked. 

Clive Efford:  I note the Minister’s comment that tapentadol is likely to be licensed in the near future. Is he aware that the Grünenthal company was admonished by the MHRA in 2009 for advertising tapentadol before it had been licensed? Is it inevitable that the drug will be licensed? Is there a process by which we can assess the need for it and whether appropriate or equivalent drugs already on the market? Does that case say something about how drugs companies promote their products by attempting to force them on the market without going through the proper processes? 

James Brokenshire:  There is a process for authorisations and, obviously, the appropriate steps will be applied in that case. I appreciate the hon. Gentleman’s comments and those that the MHRA made at the time, and I understand why he has put them on the record now. 

On the time taken between receiving the advisory council’s advice and laying the order before the House, the hon. Gentleman will be aware—from our discussions in a separate Committee about the advice on drugs that the Government receive—that we are establishing a working protocol with the ACMD that includes a provision that we will seek to respond within three months to the advice provided to us by the council on drug policy or individual recommendations. In that specific case, there has to be preparation for the necessary orders and the steps required thereafter. 

To date, there has been no evidence of licit or illicit use, which is perhaps why the order was not introduced more speedily. However, I can assure the hon. Gentleman that if there was evidence of harm, the Government would not be hanging around. Public safety would be at the forefront. Equally, as there has been no evidence of licit or illicit use, discussions with the ACMD and the MHRA were considered to be the appropriate step. In the specific circumstances of considering such things on a case-by-case basis, the public interest would not be served if resources were delegated to a consultation on a drug or drugs that are not currently available in the UK. 

The hon. Gentleman asked about education. He will no doubt have noted the references to education in the new drug strategy and the importance that we place on sending good public health messages to young people, as well as adults, on the misuse of drugs. That work is ongoing with my colleagues in the Department of Health and the Department for Education. 

My hon. Friend the Member for Cambridge, with his normal focus on detail and on ensuring that we apply proper consideration to these issues, asked about the classifications and the change that we seek to make on the omission of 4-methylmethcathinone in paragraph 1(a). He will have noted—I think he made reference to it in his short contribution—that methylmethcathinone 3 and 2 are captured in the broad generic definition in paragraph 1(aa). 

The order is a tidying-up exercise. The original order was introduced by the previous Government, and I am therefore unable to give my hon. Friend the specifics on why the doubling-up approach may have been adopted. It was presumably quite important—I remember some of the debates that took place at that time—to clearly telegraph the health harms that had been identified with mephedrone. That is perhaps why it was decided to adopt a belt-and-braces approach and to cover it in both ways. It is sensible to streamline the arrangements. The generic definition that was provided by the ACMD embraces 4-methylmethcathinone, so we have taken that approach. 

Jim Shannon (Strangford) (DUP):  I apologise for not being here earlier; I had another meeting to go to and I rushed to get here. I have some concerns, but the Minister may address them in his speech. Can he assure me and the rest of the Committee that the order will regulate the availability of the drugs and the enforcement of that regulation? I feel that that is very important. 

James Brokenshire:  When making the distinction that I just highlighted in my response to my hon. Friend the Member for Cambridge, our focus has been to provide

clarity when bringing charges on possession. The order makes it clear that the drug will now come within paragraph 1(aa) only, rather than 1(a) and 1(aa). That is a technical issue, but there is no doubt that charges can be brought. We are addressing no more than that technical change. 

Clearly, enforcement action continues in relation to mephedrone. There have been significant seizures of the drug since the previous order came into effect in April 2010. I continue to have discussions on enforcement with the Association of Chief Police Officers and a number of others. The point that the hon. Member for Strangford has made is very much at the forefront of our intentions. 

Approval of the order will ensure that we continue to meet our international obligations and that our laws are clear, responsive to newly developed pharmaceutical drugs that enter the UK market for patient care and prevent these drugs from being misused in the first place. Such controls will ensure that the necessary regulatory framework is in place to protect the public from the potential harms associated with these drugs. I hope that the Committee will approve the order. 

Question put and agreed to.  

2.56 pm 

Committee rose.