Misuse of Drugs Act 1971 (Amendment) Order 2023

Lord Coaker Excerpts

Tuesday 19th September 2023 Grand Committee

I ask the Government to think again about the reclassification because, on this side, we believe that a health-first, harm-reduction approach is badly served by these proposals. To meet these objectives, we call on the Government instead to do more to control the sale and to educate young people about the dangers.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his statement and the noble Earl, Lord Russell, for the points he made. Although I do not agree with the central tenet of what he said, he made some interesting points which need an answer. He has started a more general debate which is long overdue.

We support the SI, which brings nitrous oxide under the control of the Misuse of Drugs Act 1971 as a class C drug. As the Minister outlined, unlike the 2016 Act, it makes possession an offence. That goes against the advice of the ACMD, but we believe that the Government are correct in their evidence to do so. In fact, in the Explanatory Memorandum, the Home Office helpfully points out that in 2008 the then Government went against the advice of the ACMD when they—one Member of the Committee was in the Home Office at the time—took the decision to move cannabis from class C to class B, which I believe to have been correct, the reasons for which will be evident in what I will say about nitrous oxide.

As the Minister pointed out, 230,000 young people across our country are affected by nitrous oxide. That is an astonishing figure. What are the Government supposed to do in the face of that—just ignore it? I know the noble Earl, Lord Russell, would say, “Of course I’m not suggesting ignoring it, but there are alternative ways of dealing with it”, but the Government have a responsibility. It is good to see a large number of colleagues from Northern Ireland, because this extends across the whole of the UK.

As the Minister said, nitrous oxide is the third most misused drug among young people, and there is increasing evidence of harmful neurological effects. Rereading the comments made in the other place, I was struck that Justin Madders MP highlighted a London Ambulance Service survey that showed a 500% increase in the number of nitrous oxide incidents between 2018 and 2022. Beyond that, as many of us will know, is the impact on anti-social behaviour, as pointed out by many colleagues in the other place, including my honourable friend Alex Norris MP:

“Nitrous oxide causes significant problems in our communities”. —[Official Report, Commons, 12/9/23; col. 851.]


Many other Members of Parliament made the same point.

I am sure the Minister will agree that these communities are fed up with the nuisance and litter—as he pointed out—of the canisters and other materials in our streets and parks. As I said before, the Government needed to act. I believe that 13 tonnes of nitrous oxide canisters and other material were collected after the Notting Hill Carnival—13 tonnes of waste. What sort of impact does that have on young people walking around? What does it say to young children of three or four, or older people, or the majority of people who abide by the responsible way to behave in our communities? I understand that the noble Earl, Lord Russell, and others would not say that we should ignore that, but somewhere along the line you have to say, “This is not acceptable and we’re going to do something about it”. The Government are quite right. At the end of my remarks, I will come back to this to address a point made by the noble Lord, Lord Hayward.

I have some questions for the Minister, as there are some legitimate questions to ask. The Government’s figures say the SI will have an expected cost of £68 million to the police, courts, Probation Service and prisons. There is to be no additional funding to support that. Can the Government say why, and how it is to be funded? For example, their estimate is that there will be a need for 26 additional prison places. How will that be achieved, given the current crisis? Will this just be subsumed within it? Is there an expectation that it will be sorted out?

I agree very much with the noble Earl, Lord Russell, and the noble Lord, Lord Hayward, about the need to assess the effectiveness of the SI and monitor what happens. The Secondary Legislation Scrutiny Committee called on the Government to make sure that that was properly reviewed. I would like to understand exactly what the police view of the SI is and their—or the Government’s—expectation of increased prosecutions.

As Kit Malthouse pointed out, enforcement will be essential; otherwise, this becomes just another meaningless law. Obviously, the police will have guidance with respect to how this law is enforced. I agree that there must be flexibility. However, it would be helpful if the Minister could confirm the following. A police officer on the street will have flexibility in determining how they deal with someone who is caught in possession of nitrous oxide. It is not automatic that they will be arrested and will have a criminal record. That flexibility on the part of a police officer on the street is important—but it is also important that they have the flexibility to arrest on the basis of possession and can deal with the situation on the basis of the offence of possession. That will be an important step forward.

As I said, the ACMD did not recommend a change in the legal treatment of nitrous oxide but it suggested a number of other interventions, such as restrictions on direct consumer sales, smaller canisters to tackle non-legitimate supply, and the need for a public education programme. Can the Minister say a little more about these non-legislative changes that the ACMD said were important? I agree with the thrust of this, that there should be a change to the legislation, and this should be a class C drug. However, it is also important to recognise that the ACMD made other recommendations; it would be interesting to hear the Government’s view on what they will do in respect of those.

The Minister dealt with the question of the SI not impacting on the legitimate use of nitrous oxide. Can the Minister confirm that in the debate in the other place it was raised that the new SI proposed to deal with this will mean that there will not be any sort of policy gap between the new offence and ensuring that dentists and others with legitimate uses for nitrous oxide can carry on using it without any risk to themselves? We think the Government are right to act, but they need to make more of the damage to individuals, the link to ASB and the impact on communities.

As has been pointed out, if you look at where drugs laws have been relaxed, such as in San Francisco or Portland, there is absolutely no evidence that it reduces the harm caused by drugs. On the contrary, it increases the harm in those communities. That is the important point, and it would be interesting to have this debate around what the noble Lord, Lord Hayward, said. The Minister, Chris Philp MP, raised this in the other place, but I think we sometimes need to make more of that—

[Lord Hayward (Con)]

To clarify, I was asking a question, not necessarily advocating that the legislation should be relaxed. I asked whether, instead of banning, you might go for regulation or some other option. I was not putting forward any particular option.

--- Later in debate ---

[Lord Coaker (Lab)]

I thank the noble Lord for that clarification. I did not mean that; I am sorry if I gave the impression that I did. I think there is a necessity to review this. I want to quote Chris Philps, a Conservative Home Office Minister who I thought was absolutely right—“liberal” is not meant in a Liberal Party sense here. He said:

“I do not accept the thesis that we can have treatment only if we liberalise drug laws”.—[Official Report, Commons, 12/9/23; col. 868.]


I absolutely agree with that comment. Too often, it becomes a debate between someone who says we should have tough drug laws or someone who says we should have treatment and more diversion. Surely, the question is how we ensure that we have the correct balance between the two. We need drug laws that are harsh and effective in dealing with those who supply drugs, in particular, as well as with possession. However, alongside that we need to have appropriate community action: diversion, youth activity and employment, as well as treatment where necessary. That false dichotomy between the two does not help the debate.

As I say, we support the measures that the Government have brought forward. I hope that the questions I have raised are also helpful. Again, the Government need to do more to show people the evidence about what happens—the harm caused—when you relax drug laws and allow some of the liberalisation that is being called for. It is a false dichotomy to say that you must have either harsh drug laws or treatment. Surely, we need to put both together to ensure that we have the effective drugs strategy that we need.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all three noble Lords for their contributions to this important debate. A number of interesting points have been made. I will attempt to address them but, first, I thank the noble Lord, Lord Coaker, and the Labour Party for their support. Obviously, I regret the fact that the Liberal Democrats are unable to support this important public health and safety measure.

The Government disagreed with independent experts on this matter, as was noted by all the speakers in the debate. Turning to questions about that decision, we are of course grateful to the ACMD for its detailed report. ACMD advice is an essential part of our decision-making and we continue to have complete faith in its quality and rigour. However, the Government are entitled and expected to take a broader view, taking into account other relevant factors, which was necessary in this case. The ACMD referred to reports of increased neurological and social harms, such as drug driving and littering, associated with nitrous oxide misuse. This is alongside its widespread availability for illegitimate use and high usage, including among children and young people; I referred in my opening remarks to the large canisters that are now readily available.

As the noble Lord, Lord Coaker, noted, anti-social behaviour and visible drug use are issues of significant public concern, and we know that the harms of nitrous oxide misuse are being felt by communities. For that reason, the Government decided to go further than the ACMD’s advice to protect the public and seek to control nitrous oxide under the Misuse of Drugs Act 1971 as a class C drug. This will provide law enforcement with more tools to take action against illegitimate supply and use. As the noble Lord, Lord Coaker, helpfully pointed out, this is not the first time that a Government have disagreed with the ACMD: in 2014, for example, khat was controlled under the Misuse of Drugs Act 1971 contrary to the ACMD’s recommendations. I am also grateful to the noble Lord for mentioning the 2008 decision that reclassified cannabis as a class B drug against the advice of the ACMD; I applaud his decision then.

The Government consulted on this issue. We fulfilled our statutory consultation requirement to seek the views of the ACMD and considered its report carefully. However, as I just said, the Government are entirely permitted to take a broader view; the reasons for this are set out in our response to the ACMD, published on 27 March, which outlined the clear health and social harms associated with nitrous oxide use that led the Government to control the substance under the Misuse of Drugs Act.

The Government also undertook a public consultation to ascertain the nature and scale of legitimate use of nitrous oxide before formulating this policy, the results of which were published on 5 September. Provisions to enable legitimate drug use will be set out in a following SI that will come into force at the same time as this order, which is the normal legislative process for controlling a substance under the Misuse of Drugs Act 1971. So, in answer to the question from the noble Lord, Lord Coaker, there will be no gap.

On police support, we have heard from some in front-line policing who welcome these new powers. The National Police Chiefs’ Council is also supportive of this ban.

With regards to the treatment aspect, I could not agree with the noble Lord, Lord Coaker, more. It is never an either/or situation; it is a “both” situation. In relation to access to treatment, I refer Members to the Government’s drug strategy, From Harm to Hope, which was published in December 2021. It is clear about our ambition to achieve stigma-free treatment, providing the full positive effect of treatment services for those seeking help. Through this strategy, we are investing more than £2.8 billion over three years to support people through treatment and recovery; it includes support for those who have used a range of drugs, including nitrous oxide, and are suffering health harms. In the light of the reported rise in harms to individual users and society associated with heavy nitrous oxide use, we believe that it is necessary to take action also to restrict access to this harmful drug and reduce its misuse by, as I said, classifying it as a class C drug.

As regards legitimate use—obviously, those were legitimate questions from noble Lords—we are conscious of the need to ensure that our approach enables the continued use of nitrous oxide for legitimate and lawful purposes, of which there are many. The Government accepted the ACMD’s recommendation to consult on legitimate uses, as I said. We published our response on 5 September. That information is now being used to design the regime that will enable lawful use for legitimate purposes.

The exact proposals are still being drawn up and will be set out in a subsequent statutory instrument, as I said. However, it is worth repeating that the order we are debating today will come into effect at the same time as the accompanying amendments to the Misuse of Drugs Regulations 2001, so there will be no gap between the control of nitrous oxide under the Misuse of Drugs Act 1971 and provisions enabling its legitimate, lawful access.

The noble Earl, Lord Russell, asked about the risk of criminalising young people. That is a perfectly valid concern: will it result in the overcriminalisation of young people in particular given that the drug is so prevalent among those aged 16 to 24? However, we can assure the Committee that the Government seek a proportionate approach, in answer to the question of the noble Lord, Lord Coaker. We entrust that task to law enforcement agencies, which have a range of powers at their disposal to enforce the law—including out-of-court disposals, which are non-criminal sanctions, where they judge those to be proportionate and effective.

It is also our intention that the ban should have a preventive effect so that, over time, it reduces the number of users, in particular children and young people. We will update education resources for schools, directly accessing the children who may be at risk of becoming users. Those resources will describe the harms of drug taking and will communicate the new law to children. I also talked to the director of communications at the Home Office this afternoon before coming here; he assures me that work on this is well under way and, indeed, innovative.

I finish by saying to the noble Earl, Lord Russell, that the damage to their life prospects—

[Lord Coaker (Lab)]

I am sorry to interrupt but the point that the Minister just made is really important; I know that other noble Lords are waiting for the next SI. If you are talking about young people and the director of communications at the Home Office is talking about innovative work, it is no good putting a press release out to the BBC. It must be on all the various platforms that young people look at. I am sure that the director of communications is on top of that but can the Minister ensure that this is on social media, whatever that means now, and is not just a press release to the BBC?

[Lord Sharpe of Epsom (Con)]

I am very happy to reassure the noble Lord on that point because I asked him the same question. He said, “Yes, absolutely, of course it will be. There is no point in shoving something through their letterbox”. I agree with him; we need to find alternative letterboxes, I suppose.

As I was saying to the noble Earl, Lord Russell, the damage to children’s life chances is certainly not as lasting as the neurological damage that they may suffer.

In answer to my noble friend Lord Hayward, I do not believe that the ban will provide criminal gangs with an opportunity to profiteer from supply; it will only shrink the space for them to do so. Nitrous oxide is already being supplied illegally for misuse by lone dealers and criminal gangs. These measures will give the police and enforcement agencies greater powers to stop illegal supply.

My noble friend also asked me about a possible review of the Misuse of Drugs Act. There are no plans to conduct a review of that that I am aware of. However, in July 2022, the Home Office launched a consultative White Paper—Swift, Certain, Tough: New Consequences for Drug Possession—which proposed new policies to reform the way the criminal justice system deals with adult drug possession offences, particularly tackling so-called recreational drug use. That consultation closed in October 2022. An analysis of the responses is under way.

The outcome of this analysis and the responses provided will obviously help to inform future policy direction in dealing with low-level position offences. A government response to the consultation will be published in due course. Of course, the Government keep drug legislation under review and will reconsider the status of particular substances where it is appropriate to do so, obviously while continuing to take into account advice from the ACMD.

All three noble Lords asked me about the expected costs of the policy, in particular its effect on prison places. As has been noted, the central estimate for custodial sentences is 200 per year. We are confident that there will be capacity for this potential increase given that prison occupation is already at 99% capacity. When we estimated the impact on prison places, we also looked at the average custodial sentence length and considered that alongside the volume of custodial sentences estimated per year. It results in an annualised estimate of 26 prison places across the UK. We are taking action to reduce the pressure felt on the prison estate, including expanding capacity by an additional 2,400 places beyond the 20,000-place build programme since September 2022, so we will always have the capacity to serve the needs of the courts.

Noble Lords asked about the increasing cost of the policy. I cannot really go into detail on that because there are so many variables in working out impact assessments of this type, as will be obvious. However, there are record numbers of police officers operating in this country now—more than there have ever been before—and I certainly believe that they have the capacity to deal with this.

In closing, I hope that I have answered all the relevant questions. I once again offer my thanks to all who participated. I am grateful for the insights and the challenge that has been brought to bear on this debate. This is an issue that must be confronted and dealt with before it gets worse. Public health and public safety are vital, as is the effort to tackle anti-social behaviour.

Before I commend this order to the Committee, I have just remembered that I have forgotten to say one thing, which is about an ongoing review. On 16 June, we committed to a post-implementation review of the control of nitrous oxide under the 1971 Act, as outlined in the Minister for Crime, Policing and Fire’s response to recommendations 2 to 7 of the ACMD’s updated harms assessment. That was published on GOV.UK. I am quite sure that noble Lords will remind me if that is not forthcoming but, for now, I commend the order to the Committee.