Police Reform and Social Responsibility Bill

Memorandum submitted by Casey William Hardison (PR 30)

Re: Police Reform and Social Responsibility Bill Clause 149 & 150

Dear Sir / Madam,

I am a natural scientist and a legal philosopher with a keen interest in drug law and policy. I seek to influence provisions of paragraph 149 and 150 of the 2010
Police Reform and Social Responsibility Bill ("the Bill") seeking to amend various provisions of the Misuse of Drugs Act 1971 c38 ("the Act").

Clause 149 introducing Schedule 16 of the Bill will amend the Act to obviate the need for the Secretary of State to consult the Advisory Council on the Misuse of Drugs ("the Advisory Council") before placing a Temporary Class Drug Order ("TCD Order") before Parliament in direct contrast to the spirit of the Act under s2(5) and as expressed in Parliament by the Prime Minister in the First Day Debate on the Address, introducing the Misuse of Drugs Bill:

"My Rt Hon Friend's new bill will not only bring all the existing powers under one Act, but will give him powers on advice from ... experts in this country to devise appropriate regimes of control for any drug, new or old, according to its legitimate use, its dangers and its social effects". (HC Deb, 28 Oct 1969, Vol. 790 Col. 37, emphasis added)

Consistent with this, I do not object to TCD Orders per se only that the Secretary of State is not required to consult the Advisory Council before making such an Order. Handing power to the Secretary of State to create, on the mood of the day's press, 14-year prison sentences is reckless and arbitrary, even if subject to Parliamentary annulment, Schedule 16, clause 2A(8) of the Bill.

I accept the need for an accelerated control process that TCD Orders intend to remedy. To this end, and keeping with the spirit of the Act, it is possible for the Advisory Council to maintain a fast acting standing committee composed of a small number of members whose purpose is to undertake rapid preliminary assessment of substances of concern based on the available evidence. This could be comprised of members of the already extant Technical Sub-Committee or be a new creation such as the Temporary Class Drug Orders Standing-Committee.

Suggested Amendments to PRSR Bill Schedule 16

1. As Schedule 16, paragraph 2A, of the Bill creates criminal liability of up to 14 years by default, Temporary Class Drug Orders should be subject to:

a. Parliament's positive resolution procedure;

b. consultation with or on the recommendation of the Advisory Council on the Misuse of Drugs ("Advisory Council"); and

c. the link found in sl(2) of the Act to "harmful effects sufficient to constitute a social problem" should be maintained.

2. Hence, schedule 16, paragraph 2A(3) and 2A(8) should read something like: "2A Temporary Class Drug Orders [...]

(3) The second condition is that it appears to the Advisory Council
[Temporary Class Drug Orders Standing-Committee] that:

(a) the substances is or may be self-administered as a drug;

(b) the drug is being or may be misused;

(c) the misuse of the drug is having or may have harmful effects;

(d) the harmful effects are or may be sufficient to constitute a social problem." [...]

(8) No recommendation shall be made to Her Majesty in Council to make a Temporary Class Drug Order under this section unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament; and the Secretary of State shall not lay a draft of such an Order before Parliament except after consultation with or on the recommendation of the Advisory Council [Temporary Class Drug Orders Standing-Connnittee]".

3. An amendment to Schedule 1 of the Misuse of Drugs Act 1971 should codify a Temporary Class Drug Orders Standing-Committee, its process, its considerations and its funding.

4. In schedule 16, paragraph 7A(2) (d), the phrase "(but ignoring section 31(3))" should be struck. The principle found in s31(3) of the Act, requiring the Secretary of State consult the Advisory Council before making regulations, must be maintained.

5. More, re s31(3) of the Act, an amendment to Schedule 1 of the Misuse of Drugs Act 1971 should codify an Advisory Council Legal and Regulatory subcommittee, its process, its considerations and its funding.

PRSR Bill clause 150

The desire of the Secretary of State to eliminate the statutory requirement in Schedule 1 of the Act for scientist representing: the practice of medicine (other than veterinary medicine); the practice of dentistry; the practice of veterinary medicine; the practice of pharmacy; the pharmaceutical industry; and chemistry other than pharmaceutical chemistry, is understandable in the wake of the sacking of the Advisory Council Chair and the subsequent resignations of the statutory scientists; but this shortsighted measure overlooks the reason they are required by the Act: s7(3) and the word "shall". Section 7(3) reads:

"7. Authorisation of activities otherwise unlawful under foregoing provisions. .. J

(3) Subject to subsection (4) below, the Secretary of State shall so exercise his power to make regulations under subsection (1) above as to secure

(a) that it is not unlawful under section 4(1) of this Act for a doctor, dentist, veterinary practitioner or veterinary surgeon, acting in his capacity as such, to prescribe, administer, manufacture, compound or supply a controlled drug, or for a pharmacist or a person lawfully conducting a retail pharmacy business, acting in either case in his capacity as such, to manufacture, compound or supply a controlled drzrg and (b) that it is not unlawful under section S(1) of this Act for a doctor, dentist, veterinary practitioner, veterinag surgeon, pharmacist or person lawfully conducting a retail pharmacy business to have a controlled drug in his possession for the purpose of acting in his capacity as such.

Without statutory scientific representatives from the respective professions, how is the Secretary of State to know what it is necessary for "a doctor, dentist, veterinary practitioner or veterinary surgeon, acting in his capacity as such, [... J or for a pharmacist or a person lawfully conducting a retail pharmacy business, acting in either case in his capacity as such"to lawfully go about their business with respect to controlled drugs?

For this reason, clause 150 of the Bill should be struck.

More, in this age of evidence based policy, removing scientists is the wrong direction of travel. We should, instead, move towards the New Zealand Misuse of Drugs Act 1975 model in which s4B(2) fixes mattes to which Ministers must have regard before controlling a substance or drug.

January 2011