Draft Misuse of Drugs Act 1971 (Amendment No. 2) Order 2010

The Committee consisted of the following Members:

Chair: Mrs Linda Riordan 

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

† Campbell, Mr Alan (Tynemouth) (Lab) 

† Colvile, Oliver (Plymouth, Sutton and Devonport) (Con) 

† Cox, Mr Geoffrey (Torridge and West Devon) (Con) 

† Crouch, Tracey (Chatham and Aylesford) (Con) 

† de Bois, Nick (Enfield North) (Con) 

† Dinenage, Caroline (Gosport) (Con) 

Donohoe, Mr Brian H. (Central Ayrshire) (Lab) 

† Esterson, Bill (Sefton Central) (Lab) 

† Featherstone, Lynne (Minister for Equalities)  

Field, Mr Frank (Birkenhead) (Lab) 

† Gapes, Mike (Ilford South) (Lab/Co-op) 

† McCabe, Steve (Birmingham, Selly Oak) (Lab) 

† Mitchell, Austin (Great Grimsby) (Lab) 

† Reckless, Mark (Rochester and Strood) (Con) 

Shannon, Jim (Strangford) (DUP) 

† Timpson, Mr Edward (Crewe and Nantwich) (Con) 

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

Glenn McKee, Committee Clerk

† attended the Committee

Eighth Delegated Legislation Committee 

Monday 19 July 2010  

[Mrs Linda Riordan in the Chair] 

Draft Misuse of Drugs Act 1971 (Amendment No. 2) Order 2010 

4.30 pm 

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

That the Committee has considered the draft Misuse of Drugs Act 1971 (Amendment No. 2) Order 2010. 

It is a pleasure to serve under your chairmanship for the first time, Mrs Riordan. The order was laid before Parliament on 12 July. Hon. Members will recollect that in the final days of the previous Parliament, and with cross-party agreement, mephedrone and other cathinone derivatives—a group of so-called legal highs—were brought under the control of the Misuse of Drugs Act 1971, as class B drugs, as of 16 April 2010. If it is made, this latest Order in Council will put a further group of cathinone derivatives—including naphthylpyrovalerone, known as naphyrone and commonly branded as NRG1—under the 1971 Act’s control, also as class B drugs. 

The Advisory Council on the Misuse of Drugs said in its cathinone report of 31 March that it would provide further advice on the additional group of cathinone derivatives as a priority; they are similar to, but sufficiently different from, mephedrone and the other cathinone derivatives for the ACMD to need to consider them separately. My right hon. Friend the Home Secretary received the council’s report on 7 July and has been pleased to accept the council’s recommendation, on which this order is based, on the Government’s behalf. I commend the council for this latest example of thorough, forward-looking advice. The proposed control of naphthyl analogues through a wide-ranging definition, as set out in the order, is consistent with the UK’s legislative approach to other synthetic drugs. 

Now that we have the council’s advice to hand, we are asking for Parliament’s agreement to expedite control without delay before the House rises for the summer recess. The lessons from the UK’s experience of mephedrone, which became rapidly established before it was controlled in April, must be learned. It is proposed that the order should come into force on the second day after the day on which it is made. That could be as early as 23 July. The legislation would therefore have an immediate impact. 

Action to deal with the health risks arising from the use of existing so-called legal highs, and with the issue of further legal highs coming on to the market, is a priority for the Government. We need to consider how we can reduce the supply of and demand for new substances. Our response must be wide ranging, encompassing prevention, education, treatment and enforcement, but at its core is our legislative response. There are those who look to subvert our laws and sell potentially harmful drugs, advertising them as legal.

That can lead people, especially the young, to think that those drugs are safe. We need our drug laws to move faster to protect the public and to combat unscrupulous manufacturers and suppliers. 

As we set out in the coalition agreement, we will introduce a system of temporary bans on new psychoactive substances while the health issues are considered by independent experts. The underlying purpose of the temporary banning power is to enable Parliament to be highly responsive to emerging new psychoactive substances and at the same time provide the advisory council with the time and space necessary to formulate full advice. Full details of the temporary banning power will be announced shortly and will form part of the Government’s first Session police reform and social responsibility Bill. Legislation should be in place by late 2011. 

Although the temporary banning power will be a key and necessary tool in our legislative response to the changing landscape, our preferred approach to drug control will remain the one that the advisory council and Government have adopted for the past 40 years—a full assessment by the council before any controls are invoked by Parliament. The order before Parliament is an example of that process working. We need to add naphyrone and related substances promptly to the cathinones already controlled under our misuse of drugs legislation, because they are structurally similar to cathinones such as mephedrone, which are already classified under the 1971 Act as class B drugs, and they cause similar harms to those who use them. 

The advisory council commented: 

“Consistent with the known or reported harms of the cathinones and traditional amphetamines, the predicted harmful effects of naphyrone include adverse effects on the heart and blood vessels, hyperthermia, dependence liability, and psychiatric effects including psychosis and anxiety.” 

Of even more concern is the advisory council’s advice that naphyrone has a 

“high potency by comparison with previous cathinones”, 

which 

“suggests that its use is likely to be associated with a higher risk of accidental overdose.” 

I emphasise that those chemicals have no legitimate use. 

On receipt of the advisory council’s advice, enforcement action, including an immediate worldwide importation ban, has been and is being applied to naphyrone under the Import of Goods (Control) Order 1954. The open general import licence has been amended to exclude naphyrone from its scope. The UK Border Agency has been instructed to seize and destroy shipments of naphyrone and related drugs at the border, and we will continue to work with other law enforcement agencies to strengthen their enforcement response to the misidentification and mis-sale of illicit substances as legal highs. The Serious Organised Crime Agency is actively developing approaches to identify websites offering mephedrone for sale at home and abroad so that it can act at an international level to close down such sites. That action will be extended in scope to include naphyrone. 

Enforcement action of that sort is effective. We continue to monitor the impact of the ban on mephedrone, but it has curtailed the drug’s availability and enabled enforcement authorities to seize mephedrone at our borders and on our streets. Since the ban was introduced, the UK Border Agency has made numerous detections and

stopped more than 115 kg of suspected mephedrone from entering the United Kingdom. We also know that the UK legal highs market self-regulates, withdrawing banned drugs. The ban has provided stronger support for our public health message about the harms of mephedrone and similar drugs. 

Control of naphyrone also provides us with the opportunity to repeat our public message that although a drug may be advertised as legal, that does not mean that it is legal or safe. The advisory council’s report on naphyrone highlighted research from test purchases. The brand NRG-1 has been used and marketed by sellers as naphyrone, a legal mephedrone substitute. Branded products of that kind may contain any number of illegal cathinones, legal stimulants or other active or inactive constituents. Any brand name purporting to be legal cannot be trusted; it may be neither legal nor safe. Users put their health at risk and could be committing a criminal offence. 

We have taken several actions based on that information. It is now a key message of the FRANK service on legal highs. Last month, this being the music festival season, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), the Minister with responsibility for crime prevention, wrote to music festival organisers to make them aware of this issue and ask them to review their measures to ensure that festivals are as safe as possible. 

My Department has also called on local trading standards teams, through local authority chief executives, to work in partnership with the police to deal with the sale of legal highs by taking full account of the latest evidence, making appropriate referrals to the police and otherwise applying their responsibility for enforcing offences under the Consumer Protection from Unfair Trading Regulations 2008. The Association of Chief Police Officers of England, Wales and Northern Ireland will also update its enforcement guidance on the new psychoactive substances. 

We intend to make two further related statutory instruments, which will be subject to the negative procedure. The Misuse of Drugs (Designation) (Amendment No. 2) Order 2010 will specify naphthylpyrovalerone analogues, including naphyrone, as drugs with no statutorily recognised medicinal or other legitimate use. The Misuse of Drugs (Amendment No. 2) Regulations 2010 will similarly amend the Misuse of Drugs Regulations 2001 to include those drugs. The instruments were laid on 14 July and will come into force at the same time as this Order in Council. 

The Government will publicise the approved law changes on naphyrone and related substances through a Home Office circular and the “Talk to FRANK” and Home Office drugs websites. Reference to the law changes and health risks relating to the drugs will be included in future Government materials for young people. I commend the order to the Committee. 

4.40 pm 

Mr Alan Campbell (Tynemouth) (Lab):  May I make it clear that I support the order, and I recommend that my hon. Friends should do the same? In March 2009, when Labour was in office, the Government asked the Advisory Council on the Misuse of Drugs to consider the so-called legal highs, and, on the basis of that work,

to derive bans on substances such as GBL and mephedrone. To his credit, the Minister with responsibility for crime prevention has pointed out the growing threat from NRG-1, one of the substances that will be banned under the order. The Government are right to move in this timely way, using legislation to ban drug families or analogues. That is the correct way forward. It is part of the challenge of trying to keep up with—and, indeed, ahead of—those who seek to develop and peddle such new and harmful drugs. 

I ask the Minister for an assurance that this approach will continue and, for example, that it will be used in respect of MDAI, which recently captured the attention of the media—probably because they are aware of the ban on NRG-1. Having done the hon. Lady’s job for some time, I know that just as we get around to banning one drug, the media will turn to the dangers of another. It is difficult to keep up. 

The Minister mentioned other approaches that the Government are considering, including a temporary ban on chemicals. We considered such a ban when in office and we will certainly give it a fair wind when the Government bring forward the proposals, although the hon. Lady is probably aware of the risks associated with that approach. 

Will the Minister assure me that the Government’s drugs policy will continue to have a strong enforcement element, not least because we need to send out a strong message not only to those who use drugs but to those who produce them? Contrary to popular myth, when in government we did not set out to criminalise a whole generation of young people; however, it was important to send out a strong message. By classifying naphyrone as a class B drug, the Government are doing so today. For example, on indictment the penalty for the supply, production and trafficking of class B drugs is 14 years and/or an unlimited fine; on summary conviction, the penalty for the supply, production and trafficking of class B drugs is up to six months and/or a fine of £5,000. 

I ask the Minister for a second assurance, in the context of the Justice Secretary’s comments about short sentencing. Will she assure the Committee that, if a court decides that a six-month sentence is appropriate for someone who has been producing and supplying naphyrone and/or trafficking, that is what happens? In my view, the motivation of those evil people who produce and traffic these drugs is not based on addiction, but on exploitation. 

As the Minister knows, drugs are often a catalyst for other serious criminality. Will she assure the Committee that she will do all she can to ensure that the police and other agencies are properly resourced? It is made clear in the notes that accompany the order that we cannot know at the moment how much the ban will cost. I make no criticism of that; of course it is not possible to predict what the costs will be. 

However, there will inevitably be enforcement and training costs. Other costs will become more evident as more work is done on legal highs; I think of the cost of the forensics necessary to identify what drugs the police have taken or captured in raids on the producers of these substances. The Minister will know from recent test purchasing operations that what is being sold as naphyrone is sometimes something completely different. To get around that, we must ensure that there is enough money in the coffers to pay for forensics. 

I congratulate the Government on doing what the previous Government did on mephedrone and not waiting for these drugs to be banned before getting on with a ban on their importation. The Minister talked about intercepting and destroying drug shipments, but she will know that the problem is not so much the high seas, which are used to bring these substances into our country, as the internet, where people can buy these drugs relatively freely—and where I am sure they will sometimes be able to continue to buy them after they have been banned, if the drugs are given another name. Do the Government not need to pay more attention to ensuring that the internet is policed as far as possible? 

The Minister briefly mentioned the Serious Organised Crime Agency, whose main priority is tackling class A drugs, rather than other drugs, although the two are not always separate from one another. I seek the Committee’s indulgence for a minute to pay tribute to Mr Bill Hughes, SOCA’s director general, who will leave his post very soon—indeed, before we return from the recess. He has been a fantastic advocate for the police service and SOCA, as well as a great servant to the public. I wish him well. 

As the Minister said, enforcement is only one part of the message when it comes to tackling the harm that drugs do. We need to get the prevention right, particularly through education. As she said, the Minister with responsibility for crime prevention was keen to get the message out during the festival season, but will the Government also get information out in a timely fashion to health care providers? Similarly, will they write to schools in time for the autumn term, as the Labour Government did when tackling legal highs? 

I take the Minister’s point about the FRANK website’s being one of the key ways in which people get information. However, I would like her to go to it soon, if she has not already, to look at its message about legal highs, to make sure that it is as robust as it should be. I have looked at it recently, and it is not as robust as I would have hoped. 

Finally, I should say that my hon. Friends and I will support the order. When the Conservative party was in opposition, we could usually rely on it when it came to taking tough action on drugs; in fairness, we could not always rely on representatives of the Minister’s party in the same way, although I do not want to make a party political point. If we are in the era of coalitions, and the Government propose a coalition to take the toughest possible measures to tackle drugs, Ministers can count on my party to be part of that coalition. 

4.48 pm 

Lynne Featherstone:  I thank the hon. Member for Tynemouth (Mr Campbell) for his party’s support on this important issue. He raised a number of issues, which I will try to address in my response. 

The first issue was the rise in drug usage. The hon. Gentleman sought reassurance that our general approach will continue, and I can give him that assurance. On the Advisory Council on the Misuse of Drugs, it is clear that as soon as we close the door on one synthetic drug, another drug with minute differences raises its head.

This is an ever-changing market, and there is no doubt that we must pursue it relentlessly. We are keen to use generic definitions wherever we can. 

On strong enforcement and strong messages, I agree that we need to send the strongest of messages, and we are giving the police the information and the tools, although how they use them at local level is obviously a matter for their discretion. The message is very strong, and I trust that the police will hear it, too. 

The hon. Gentleman asked about general sentencing policy, and it is incredibly important that that should be effective. The issue is part of the coalition agreement. As he knows, however, ensuring that sentencing is effective is also partly related to what we do about rehabilitation, in terms of drug treatment. 

Mr Campbell:  I am very grateful for that comment from the Minister and for the reassurances that she has given. However, is it not a fact that the public may well see a distinction between someone who gets involved in petty crime because they have a drug addiction and someone who actually produces and distributes the drug, which does so much harm to people, often including young people? Is there not a distinction? 

Lynne Featherstone:  There is a distinction and that is why the penalty for distribution and dealing is 14 years, as I understand it. 

The actions that will be taken to control internet sales will mean that it will not really matter whether drugs are obtained on street corners or via the internet—the crime is exactly the same. So we have to tackle the internet issues. The Government and law enforcement agencies take the issue of unlawful advertising and sales on the internet very seriously. If the police believe that a crime has been committed, they can approach the originating internet service provider on the basis that disclosure under data protection legislation is proportionate to the crime. 

The UK Border Agency is the agency that has the responsibility for the enforcement of legislation with regard to the importation of controlled substances. It uses intelligence and modern detection techniques to identify packages that may contain prohibited drugs. When packages do contain prohibited drugs, the UKBA has the powers to seize those substances. Legal highs are a new phenomenon for many jurisdictions and they fall outside existing drugs legislation, so they present particular challenges as we work internationally to find out how to combat them across borders. However, productive discussions have taken place with competent authorities and source countries. 

The hon. Gentleman asked about health issues. The Advisory Council on the Misuse of Drugs recommended a public health and education campaign. Obviously, we are exploring the use of existing channels to communicate the messages. As I am sure the hon. Gentleman knows better than I do, FRANK currently has an existing information page on talktofrank.com. FRANK advisers are fully trained to deal with calls about legal highs and they will receive additional specific briefing about naphyrone, in line with the recommendation. 

Furthermore, the Home Office will seek to engage the media to place these messages proactively in the news and consumer press. The Home Office has asked drug action teams and equivalent organisations to use their existing networks to cascade to the relevant agencies

in their areas the links to the relevant information, including the implications of the forthcoming classification of naphyrone. I will speak to the hon. Gentleman about the issue of writing to schools. 

In conclusion, approval of this order will help to ensure that the necessary controls are in place to protect the public, and in particular the health of our young

people, from the harm of drugs. We will continue to monitor trends in the misuse of drugs and we will assess the impact of the controls introduced by the order. 

Question put and agreed to.  

4.53 pm 

Committee rose.