Appendix 2
S.I. 2018/1055
Misuse of Drugs (Amendments) (Cannabis and Licence Fees) (England, Wales and Scotland) Regulations 2018
1.The Committee has asked the Home Office for a memorandum on the following point:
Does the Department have anything to add to paragraphs 3.1 and 3.2 of the Explanatory Memorandum? In particular can the Department confirm that section 7(1)(b) of the Misuse of Drugs Act 1971 (which is also cited as an enabling power) is intended to be relied upon as providing relevant vires for what is proposed?
2.The Department’s own analysis of the reliance that it is placing on section 7(1) of the Misuse of Drugs Act 1971 (“the 1971 Act”) for the purposes of inserting the new entry for “cannabis-based products for medicinal use in humans” into Schedule 2 to the Misuse of Drugs Regulations 2001 (“the 2001 Regulations”), and the attendant definition into regulation 2(1) of those Regulations, is as follows. At the outset, it may be helpful to set out section 7(1) of the 1971 Act, which provides:
“7.-(1) The Secretary of State may by regulations—
a) except from section 3(1)(a) or (b), 4(1)(a) or (b) or 5(1) of this Act such controlled drugs as may be specified in the regulations; and
b) make such other provision as he thinks fit for the purpose of making it lawful for persons to do things which under any of the following provisions of this Act, that is to say section 4(1), 5(1) and 6(1), it would otherwise be unlawful for them to do.” (emphases added)
3.Regulation 3 of the 2001 Regulations introduces Schedules 1 to 5 to those Regulations, which function in part simply as lists of the controlled drugs specified under section 7(1)(a) of the 1971 Act. However, in some instances, ensuring that entries to the lists function appropriately requires qualification of those entries in ways that make use of powers other than the bare power to specify “controlled drugs” as defined in section 2(1) of the 1971 Act.
4.In particular, reliance may also be placed either on section 7(1)(b) of the 1971 Act to make such other provision as the Secretary of State thinks fit for the purposes mentioned in paragraph (b), or on section 31(1)(a) of the 1971 Act for regulations made under any provision of the Act to make different provision in relation to different cases or circumstances. Section 31(1)(a) of the 1971 Act provides:
“31.-(1) Regulations made by the Secretary of State under any provision of this Act-
a) may make different provisions in relation to different controlled drugs, different classes of persons, different provisions of this Act or other different cases or circumstances;”
5.Generally, the Department accepts that it is to be assumed that it has relied on a substantive power such as section 7(1) rather than a “parasitic” power such as section 31(1)(a). The Department can confirm that some reliance is placed on section 7(1)(b), and, to the extent that such a construction is tenable, it is to be preferred over a construction that places reliance on a section 31(1)(a).
6.However, regulations under section 7(1)(b) can only address partially the impact of placing controlled drugs in Schedules 1 to 5 to the 2001 Regulations. The Department therefore considers that some reliance has to be placed on section 31(1)(a) (read with section 7(1)(a)) for the scheme of scheduling of controlled drugs to the 2001 Regulations, generally, to have their full effect.
7.As such, in the absence of section 7(1)(b) of the 1971 Act, the Department considers that it would be able to rely wholly on section 7(1)(a) and section 31(1)(a) to reschedule by reference to the form and purpose of the cannabis-based products in issue in the way that it has. Nevertheless, the Department accepts that it should have expressly indicated in paragraph 3.2 of its Explanatory Memorandum that it was also relying on the substantive power in section 7(1)(b) of the 1971 Act as relevant vires and apologises for not doing so.
Home Office
6 November 2018
Published: 23 November 2018