Appendix 1
S.I. 2013/176 and 177: memorandum from the Home
Office
Misuse of Drugs (Amendment) (England, Wales
and Scotland) Regulations 2013 (S.I. 2013/176)
Misuse of Drugs (Designation) (Amendment) (England,
Wales and Scotland) Order 2013
(S.I. 2013/177)
1. This memorandum is
submitted in response to a question from the Joint Committee on
Statutory Instruments to the Home Office on 27 February 2013.
The Committee asked:
Explain why it was concluded that there was power
to make these instruments on 31 January 2013.
2. The department is
grateful to the Committee for bringing this matter to its attention.
The department recognises that the powers in the Misuse of Drugs
Act 1971 ('the 1971 Act') cited in the two instruments refer
to 'controlled drugs', and that at the time those instruments
were made, the Order in Council (S.I. 2013/239) which made
the relevant substances 'controlled drugs' within the meaning
of that Act had not yet been made. It is mindful, however, that
both instruments had no legal effect at all until they came into
force on 26 February, at which time the relevant substances were
'controlled drugs' within the meaning of the 1971 Act. Accordingly,
the instruments do not do anything, or purport to do anything,
which there was no power for them to do. Both instruments were
made in clear contemplation that the relevant Order in Council
would be made at the Privy Council scheduled for 12 February,
and all three instruments were intended to and did come into force
simultaneously on 26 February. This same arrangement has
applied in relation to five earlier Orders in Council exercising
the same power (S.I. 2012/1390, S.I. 2011/744, S.I. 2010/1833,
S.I. 2010/1207, and S.I. 2009/3209).
3. In relation to S.I.
2013/176, section 31(1)(c) of the 1971 Act refers to regulations
containing supplementary, incidental and transitional provisions
as appear expedient, and the department considers, especially
considering past practice in this regard, that it was expedient
for regulations to be made as soon as the draft Order in Council
had been approved by both Houses of Parliament. Similarly, under
section 10(1) of the 1971 Act, the Secretary of State may make
such provision as appears necessary or expedient for preventing
the misuse of controlled drugs. Again, it was considered expedient
to make provision to modify what would otherwise be the effect
of the Order in Council in relation to controlled drugs as soon
as it came into force.
4. Moreover, the scheme
of the 1971 Act clearly envisages that both regulations and orders
may be made so as to modify the effect of controlling a drug under
an Order in Council; this requires that they come into force simultaneously.
It would therefore be odd if it were not possible under the 1971
Act for the Secretary of State to make such regulations and orders
until such time as an Order in Council had already specified that
the substance in question was a controlled drug, forcing the Secretary
of State to rely on the 'anticipatory powers' available within
the Interpretation Act 1978.
5. Having considered
the matter, the department considers that there was sufficient
power within the scheme of the 1971 Act to make these instruments
on 31 January 2013.
Home Office
4 March 2013
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