Misuse of Nitrous Oxide

Lord Mackinlay of Richborough Excerpts

Tuesday 21st July 2020 Commons Chamber

[Kevin Foster]

Absolutely—it is about being clear that laughing gas is no laughing matter, in terms of the impact that it can have on people’s health.

Nitrous oxide is considered a psychoactive substance under the Psychoactive Substances Act 2016. As has been touched on, it has legitimate uses in medicine, dentistry and even as a propellant for whipped cream canisters, but it is an offence to supply nitrous oxide if someone knows that it will be used for its psychoactive effect, or is reckless in that regard, rather than for a legitimate purpose. Those convicted under the Act may be subject to a maximum sentence of seven years’ imprisonment, an unlimited fine, or both.

[Craig Mackinlay (South Thanet) (Con)]

We have the same problem as the hon. Member for Canterbury (Rosie Duffield) on the beaches. It seems to be the fashion of the day. The Minister said that there are controls on retailers, but I have just looked online and eBay is selling these things—100 for £48.95—despite the guidance from the Government that this should not be on open sale. Something is going wrong with these online retailers, and something needs to be done.

[Kevin Foster]

I thank my hon. Friend for his intervention, and I will come in a minute to some things we are looking at—a package partly around online harms more generally, which include, of course, things being sold online and where people are being reckless as to what may end up being done with them.

In 2016, there were 28 convictions under this legislation in England and Wales, with 152 convictions in 2017, 107 convictions in 2018 and 52 convictions in 2019. These figures include those related to nitrous oxide, but a breakdown by drug substance is not available.

In November 2018, the Government published a review of the Psychoactive Substances Act 2016, which provided detailed insight into the way in which the Act has affected the sale and use of potentially harmful psychoactive substances. The review concluded that, after the 2016 Act came into force, 332 retailers across the United Kingdom were identified as having closed down, including many so-called head shops, or stopped selling new psychoactive substances. Anecdotal evidence from the police shows that open sale of NPSs on our high streets ceased. Meanwhile, action by the National Crime Agency resulted in the removal of psychoactive substances being sold by UK-based websites.

The Government have published guidance for retailers to satisfy themselves that they comply with the law, recommending that retailers, including those operating online, should pay particular attention to the potential for abuse of nitrous oxide, especially where customers seek to buy in bulk or larger volumes, or where, by the nature of the sale, it is clear they are unlikely to be used for legitimate purposes. I would also point out that the sale of nitrous oxide for its psychoactive effects is illegal regardless of the age of the purchaser, although selling to children could well undermine a retailer’s defence that they had taken appropriate steps to prevent its being misused and were effectively being reckless.

Turning to the need for tighter online regulations, the Online Harms White Paper sets out the Government’s plans to make companies more responsible for their users’ safety online, especially for children and other vulnerable groups. The supply of psychoactive substances for their psychoactive effect will fall within the scope of the planned legislation set out in the White Paper. The Government’s initial response to the consultation on the White Paper was published in February, which gave more detail on the policy position and named Ofcom as the Government’s preferred independent online harms regulator. We will publish a full response to the consultation in the coming months and, crucially, aim to bring legislation before Parliament in this Session.

The Government are committed to helping people feel safe in their local area, and are giving police the powers and resources to do this. The police funding settlement for 2020-21 sets out the biggest increase in funding for the policing system in a decade. The Government will provide a total police funding settlement of up to £15.2 billion in 2020-21, which is an increase of up to £1.12 billion compared with 2019-20, including main grant, council tax precept and national priorities. Police and crime commissioners will receive £700 million to recruit up to 6,000 additional officers by the end of March 2021. These will be shared among the 43 territorial police forces in England and Wales. The increase in officer numbers will help the forces in England and Wales tackle crime and keep our communities safe, including by tackling problems associated with nitrous oxide abuse.

Turning to the role of local government, the Anti-social Behaviour, Crime and Policing Act 2014 introduced powers such as public space protection orders that the police and local councils can use to prevent people from taking intoxicating substances, including psychoactive substances such as nitrous oxide, in specified areas. I know the hon. Member for Canterbury will be working with her local council to ensure these are used, where appropriate, in her constituency, as I saw the coverage in the local press of this debate when she had secured it.

With regard to the littering associated with the misuse of nitrous oxide, often the small canisters left lying in the street, as my hon. Friend the Member for Wycombe (Mr Baker) mentioned, can be not just unsightly but a danger to road users. Local councils have a statutory duty to keep their land clear of litter and refuse. It is, of course, an offence to drop litter, and councils have legal powers to take enforcement action against offenders. Anyone caught littering may be prosecuted in a magistrates court, which can lead to a criminal record, although instead of prosecuting, councils normally will decide to issue a fixed penalty or on-the-spot fine. We have increased the maximum fixed penalty for littering from £80 to £150 since April 2018, and from April 2019 the minimum fixed penalty was also raised from £50 to £65. We have also given councils in England outside London new civil penalty powers to tackle littering from vehicles.

We recognise that in the current circumstances local authorities may well have more challenges than usual in collecting all kinds of waste, as outlined in the speech by the hon. Member for Canterbury. The Government have therefore announced a multibillion-pound support package for local authorities, in responding to the covid-19 pandemic, to ensure these demands can be met.

[Craig Mackinlay]

The Minister has outlined the legislation, as well as the background to the powers that councils have and that the Psychoactive Substances Act 2016 gives us, but very few offences are taken further under that Act, which is disappointing. The frustration the public have is that although we have oodles of legislation, we do not seem to be applying it.

[Kevin Foster]

I appreciate my hon. Friend’s frustration, and having campaigned for the 2016 Act I know what the situation was before that, when the theory was that a shop would be selling research chemicals, with the idea that a research chemist was going to walk down the street and buy something for their next project. That is why we introduced that Act. We are looking to legislate further on online harms, taking on board some of the points made about where things can be bought online, and tightening those provisions. Similarly, particularly where there are problems in local areas—for example, if people are taking substances on the street—there are powers that can be used. Similar powers can also be applied to those drinking alcohol. That is not a criminal offence in itself, but if it leads to antisocial behaviour and those tests are met, an order can be applied for to prevent that taking place in a particular location.