Misuse of Drugs Act 1971 (Amendment) Order 2024

Lord Allan of Hallam Excerpts

Tuesday 16th January 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, this draft order, which was laid before Parliament on 27 November last year, proposes amendments to the Misuse of Drugs Act 1971 to control 15 substances as class A drugs, four substances as class B drugs and one substance as a class C drug. To achieve this, it proposes amendments to Schedule 2 to that Act, which sets out what drugs are controlled and their classification.

Fifteen synthetic opioids, including 14 nitazenes, will be controlled as class A drugs under the 1971 Act. This follows recommendations from the Advisory Council on the Misuse of Drugs in its report of 18 July 2022 and addenda of 19 December 2022 and 6 October 2023. The Government commissioned the ACMD for its advice following international control of three of the synthetic opioids—at this point, I beg noble Lords’ indulgence because pronouncing some of these names is not easy; they are isotonitazene, metonitazene and brorphine—under Schedule 1 to the United Nations Single Convention on Narcotic Drugs 1961, to which the UK is a signatory.

In addition to reviewing these substances, the ACMD considered the harms of other similar synthetic opioids and concluded that they pose serious acute health risks, reinforced by reports of their involvement in a number of drug-related deaths and near-fatal overdoses. The ACMD determined that their potency and availability present a significant potential threat to public health and therefore recommended the highest level of control as class A drugs under the 1971 Act. This is for all 15 synthetic opioids, including the three controlled internationally.

Additionally, three stimulants—diphenidine, ephenidine and methoxyphenidine—will be controlled as class B drugs under the 1971 Act by this order. This follows international control of diphenidine under Schedule 2 to the United Nations Convention on Psychotropic Substances 1971 in April 2021, after which the Government commissioned the ACMD to review its harms. In its report of 25 May 2023, the ACMD noted the involvement of these substances in a number of drug-related deaths worldwide and recommended that they be controlled as class B drugs under the 1971 Act. This is in line with similar dissociative class B drugs, such as ketamine.

Also to be controlled as a class B drug is Cumyl-PeGaClone, a synthetic cannabinoid receptor agonist—SCRA—which, similarly to diphenidine, was added to Schedule 2 to the United Nations Convention on Psychotropic Substances 1971 in April 2021. Many SCRAs are currently controlled as class B drugs under a generic definition in the 1971 Act. However, owing to its structure, Cumyl-PeGaClone falls outside the generic definition. The ACMD report of 25 May 2023 recommended that the Government consult relevant stakeholders on modification to the definition, which the Government have agreed to do. In the meantime, to address the harm it poses and meet our international obligations more quickly, the Government have opted to control Cumyl-PeGaClone individually as a class B drug, in line with other SCRAs. We will consult on modifications to the generic definition in due course.

Finally, remimazolam, a benzodiazepine, will be controlled as a class C drug under the 1971 Act. Remimazolam is the active ingredient in a product given marketing authorisation, otherwise known as a medicines licence, by the Medicines and Healthcare products Regulatory Agency in 2021. The ACMD recommended in December 2022 that it should be controlled as a class C drug as its potential harms are commensurate with other benzodiazepine drugs already controlled under class C.

I am grateful to the ACMD for the comprehensive reports it has produced. Those reports have been the foundation of this legislation. According to the ACMD’s advice, all the substances are psychoactive and therefore potentially subject to the offences under the Psychoactive Substances Act 2016. The 2016 Act contains offences for the production, supply, possession with intent to supply, import or export of a psychoactive substance where a person knows, or is reckless as to whether, it will be consumed for its psychoactive effects. It does not, however, contain an offence for the simple possession of a psychoactive substance, other than in a custodial setting. Medicinal products are exempt from the provisions of the 2016 Act, and medicines based on remimazolam are therefore currently exempt.

The control of these substances under the 1971 Act would make it an offence to possess them and impose higher penalties and enforcement provisions for supply and production offences. Those found in unlawful possession of a class A drug could face up to seven years in prison, an unlimited fine or both. Meanwhile, those who supply or produce a class A drug could face up to life imprisonment, an unlimited fine or both.

One of the substances, remimazolam, has a known medicinal value in the UK as it has been granted a marketing authorisation. To enable its use in healthcare, remimazolam will be placed in part 1 of Schedule 4 to the Misuse of Drugs Regulations 2001 by a statutory instrument made under the negative procedure. It is the Government’s intention that it will come into force on the same date as this affirmative order. The other 19 substances will be placed in Schedule 1 to the 2001 regulations by that same negative statutory instrument. This is because they have no known medical or therapeutic value in the UK and will mean that they can ordinarily be accessed only under a Home Office-controlled drug licence. Again, this follows ACMD advice. Cumyl-PeGaClone will also be placed in Schedule 1, in line with other SCRAs already controlled under the 1971 Act and 2001 regulations.

These substances, excluding remimazolam, will therefore be added to part 1 of Schedule 1 to the Misuse of Drugs (Designation) (England, Wales and Scotland) Order 2015. Controlled drugs are designated where the Secretary of State is of the opinion that it is in the public interest for production, supply and possession of that drug to be wholly unlawful or unlawful except for research or other special purposes, or for medicinal use of the drug to be unlawful except under licence.

Drug misuse ruins lives and adversely affects society as a whole. The Government have a responsibility to protect the public, their safety and their health, and that is why we are proposing this action. As I have set out, these substances cause or have the potential to cause significant harm to both the individual who uses them and the communities in which they live, and must be subject to stricter controls. I commend this order to the Committee.

[Lord Allan of Hallam (LD)]

My Lords, in speaking for these Benches I would ordinarily speak from a health perspective. From our point of view, a lot of the drug abuse issues fall within that category. We are obviously dealing with a Home Office statutory instrument today, but I hope that the Minister will indulge me if I put some questions that come from that angle of considering the impact on individuals of the drugs we are due to control.

The first is around how we will monitor, in particular, the prevalence of the synthetic opioids that are to be classified by the instrument we are considering. I think we have all looked in horror at the situation in the United States, where the firewall that exists between heroin and other forms of drugs has broken down, in a sense, through the distribution of synthetic opioids to a much broader demographic who, it seems, feels more comfortable taking them than would feel comfortable taking heroin. But the medical harm is just as severe—in some cases, more severe—so I will be interested to hear from the Minister how the Government intend to monitor the prevalence and usage, particularly across different demographics, of these synthetic opioids, as well as prohibiting them, which is right. It is correct that we are following the advice of the advisory council here, but also really important that we understand the way in which these synthetic opioids are being consumed within the community.

The second issue I want to raise follows on from that, which is to consider how treatment services will deal with people who present because they have an addiction to the drugs we are considering. The numbers are quite stark: in 2021-22, just over 289,000 people presented for treatment services. Nearly half of them presented for opiate addictions and over 70% had mental health problems. It is critical to understand, as we broaden the net on the drugs that we bring into scope, how we will be able to respond to the people who come to the attention of the authorities because they are using these opiates—and get them off those. Just as important as any attempt to ensure that they are prosecuted is to get them out of that drug dependency and back into a normal state. Again, I want to understand what consideration has been given to how treatment services will need to be adapted to cover this broader range of synthetic opiates that we are bringing into scope.