Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2017

Lord Lexden Excerpts

Tuesday 24th October 2017 Lords Chamber

[Lord Paddick (LD)]

My Lords, my noble friend Lord Newby made the point last week, when the Leader of the House asked for this House to suspend its Standing Orders in order to consider this matter today, that this legislation has not been scrutinised by the Joint Committee on Statutory Instruments because of the Government’s failure to appoint their Commons members of that committee. This is clearly unacceptable and must be resolved as soon as possible.

In this particular case, the order is the result of a recommendation, as we have heard, by the Advisory Council on the Misuse of Drugs to permanently classify the drug MPA as a class B drug. I am therefore confident in supporting this order as the recommendations of the ACMD are evidence based.

However, the comments of the parliamentary Under-Secretary of State for the Home Office to the first Delegated Legislation Committee in the other place yesterday, which presumably were a repetition of what the Minister said this evening to the House—again, I apologise for being slightly caught out by the early start of this particular debate—draw questions around bigger issues about the Government’s approach to controlling drug misuse.

MPA is a synthetic drug designed to replicate the effects of cocaine or MDMA. MPA started off life as a legal replacement for these class A controlled drugs. Prior to the Psychoactive Substances Act and the temporary class drug order, MPA would have been legal to both supply and possess. As we have heard, the Psychoactive Substances Act permanently made manufacture and supply of the drug illegal, but not possession, while the TCDO and this measure make possession as well as manufacture and supply illegal. Whether it sends a message to users about how dangerous the drug is is questionable.

The development of synthetic alternatives to existing controlled drugs—and in this case I am thinking in particular of things such as spice, the synthetic alternative to cannabis—runs the risk of creating even more toxic, and far more dangerous, drugs than the drugs they are designed to replace. The risk of continuing with a prohibition-based strategy of controlling the misuse of drugs is likely to increase the number of drug-related deaths.

Can the Minister tell the House, or write to me subsequently to tell me, how many deaths have resulted from the misuse of cocaine and MDMA between 2012 and 2017, compared with the 46 cases where post-mortem toxicology showed traces of MPA, and the 33 cases where MPA was implicated in the actual cause of death, as a proportion of arrests for possession of each type of drug—which we can assume is a proxy for how much cocaine, MDMA and MPA is being used? Can the Minister also tell the House how many deaths have resulted from the misuse of cannabis between 2012 and 2017?

If MPA is as dangerous, or more dangerous, than cocaine or MDMA, the question must be: why is it being classified as a class B drug while the others are classified as class A drugs? If MPA is, as I suspect, more dangerous than cannabis, at least in terms of fatalities, why is it in the same class of drugs as cannabis? Assuming, as I do, that the ACMD has made the right evidence-based decision in terms of its recommendations as to which class MPA should be placed in, what does this say about the classification of cocaine, MDMA and cannabis?

The point I am trying to make is that the current classification of drugs under the Misuse of Drugs Act lacks credibility, certainly with users. No one I know who misuses drugs starts from a point of asking, “What class is it in?” when deciding which drug to take.

We should be taking a harm reduction-based approach to the misuse of drugs, which should be treated as a health issue and not a criminal justice issue. That having been said, just because the classification of drugs under the Misuse of Drugs Act lacks credibility and other drugs may be wrongly classified, this does not mean that this evidence-based recommendation from the ACMD is wrong. On that basis, we support the order.

[Lord Lexden (Con)]

The noble Lord, Lord Paddick, made reference to the unusual circumstances in which this order comes to the House this evening. It has not been scrutinised by the Joint Committee on Statutory Instruments because that committee has not been re-established because of the failure of the other place to provide its members to the committee. I was a member of the Joint Committee in the last Parliament, and I am looking forward to resuming work, I hope, at an early point in this Parliament.

The committee receives advice from a formidable array of legal experts. They invariably find points that need correction—sometimes smaller, sometimes larger. I have just one question for my noble friend. In the absence of the committee, is she satisfied that this order has been subjected to sufficiently rigorous scrutiny by legal experts?

[Baroness Williams of Trafford]

My Lords, I thank noble Lords for the contributions that they made to the debate, and the helpful points that have been raised. I trust that I made the case based on the available evidence and the advice provided by the ACMD that this order to permanently control MPA as a class B drug, under the Misuse of Drugs Act 1971, should be approved.

The noble Lord, Lord Paddick, rightly makes the point about the JCSI and the failure to appoint members to the committee. My noble friend the Lord Privy Seal apologised for that to this House this time last week. My noble friend Lord Lexden makes the same point and asks if we are satisfied that this order has been given the correct amount of scrutiny before it comes to your Lordships’ House. It has gone to the other place. It has come here on the advice of the ACMD and I am satisfied that, in getting full airing from both Houses, we have given it correct scrutiny. I appreciate that many noble Lords almost did not get here tonight because events moved a lot more quickly than we thought. The timescales for achieving the full control of MPA under the 1971 Act, before the expiry of the temporary class drug order, are very tight. Further delay in attending to JCSI clearance means that there is a significant risk that we would not be able to pass scrutiny and finish debate in time for the Privy Council to make the order at its meeting on 15 November. The noble Lord, Lord Newby, made the point that it is most important that this order is considered in good time. I must reiterate my noble friend the Lord Privy Seal’s apology on this, but I am satisfied that scrutiny is being fully applied to it, particularly as the noble Baroness, Lady Meacher, is in her place.

The noble Baroness, Lady Meacher, talked about the outcome of the ban and asked whether we have done any analysis of it. We have seen a significant fall in the use of new psychoactive substances among 16 to 59 year-olds in the past year, from 0.7% in the 2015-16 Crime Survey for England and Wales to 0.4% in 2016-17.

I was asked why this was being done under the Misuse of Drugs Act, not the Psychoactive Substances Act 2016. Given the reported risks and known harms that this substance has already posed to public health, the ACMD has advised that the MDA is the preferred option for control. Permanent control of MPA under the MDA—this is a real tongue-twister—utilises the stricter offences of production and distribution under any circumstances without a licence. Permanent control of MPA also makes the act of possession an offence under the MDA and increases the maximum penalties for the other offences. The stricter offences and penalties will prove a stronger deterrent to the supply and possession of these substances.

The noble Baroness also asked about plans for the Home Office to review the 1971 Act. We have no plans to do so, but Section 58 of the Psychoactive Substances Act commits the Secretary of State to review the operation of the Act, prepare a report of the review and lay a copy of it before Parliament 30 months after commencement of the Act. This review will therefore report its findings in 2019.

The noble Lord, Lord Paddick, asks why MPA is classed as class B when it is believed to be more dangerous than MDMA and cocaine, and he gave some compelling examples of synthetic versions of traditional drugs, if you can call them that. In the past year, cocaine was related to 371 deaths. That confirms its status as class A drug-appropriate. I will write to him on the other points he raised on the comparisons between the synthetic versions of some of the more traditional drugs and the number of deaths associated with them, particularly cannabis, because I know the noble Baroness, Lady Meacher, is listening with intent.

On that note, I hope I have answered most of the questions. If I have not addressed all of them, I will of course write. I think there was a question from my noble friend Lord Patten about advice from the advisory committee on stronger forms of cannabis. I will write to him on that.